Civil Law for the victims of death and injury
What does this mean?
The system of compensation for the victims of those injured or killed in road collisions is governed by Civil Law. This has to be distinguished from Criminal Law and there are a number of important differences. Compensation is simply the award of money (sometimes called the payment of damages) to either the injured person, or to the relatives of the deceased person. Payments are usually made through Insurance Companies, or the Motor Insurers Bureau. To succeed, a fatal motor claim requires someone to be found responsible (liable) for a death and for the liable person to agree to pay you an amount of money (an award). An award is made after a process of negotiation or a court ruling.
Who is involved?
The person bringing a claim is called a Claimant, and the person defending the claim is called a Defendant. The Defendant will usually have the backing of an Insurance Company who will normally appoint its own solicitor from a panel of solicitors that most Insurance Companies keep.
It is essential to know that the Claimant has an absolute right to choose his or her own solicitor. It is important that a solicitor is chosen who is experienced in personal injury work or fatal accidents compensation. It is rare to find a solicitor who deals with divorce or conveyance work that has the necessary experience to deal with compensation claims. This is sometimes forgotten in cases arising from road traffic collisions. Some Insurance Companies insist that Claimants use a solicitor from the Insurance Company panel of solicitors. It is important to guard against this, as from experience, most panel solicitors are inexperienced in dealing with serious or fatal injuries and the work can often be downgraded to an unqualified clerk.
Legal Aid is not available for any claim here.
Who has the burden of Proof?
The burden of proof usually rests with the Claimant. The standard of proof in Civil cases is based on the
balance of probabilities, unlike in the criminal court where the proof has to be
beyond all reasonable doubt.
It will be seen, therefore, that for a Claimant to prove his or her case, a lesser degree of proof is required than in a similar criminal case being heard at Magistrates or Crown Court. This is important. It means that although a person may not have been charged with any criminal offence, or even if a person has been charged but acquitted of a criminal offence, it may still be possible for the relatives of the victim of a road incident to claim compensation.
Can I claim for funeral costs?
Yes, the cost of the funeral, or most of the cost, can be claimed from a liable party.
What type of damages can I claim?
For an injured person, it is possible to claim damages that split into two categories of claim.
- General Damages – This is compensation for a person’s pain and suffering.
- Special Damages – These are the actual direct or indirect financial losses which have been caused by the road traffic incident, including everything from loss of earnings, recompensing friends and relatives who attended upon the injured person, to rehabilitation, private medical treatment and so on.
What happens when somebody dies?
Your solicitor may advise you to make one, several or none of theses claims.
There are two claims here, they are as follows: –
- Law Reform (Miscellaneous Provisions) Act 1934
The Law Reform Claim)Which covers:
- Financial losses incurred by the deceased before his/her death
- Compensation for pain and suffering before death
- Funeral expenses.
- Fatal Accident Act 1976.
(known as the
Fatal Accidents Claim)Which covers:
- Bereavement award (£10,000) for certain dependants.
- Dependency claim for financial losses suffered by dependants.
- Funeral expenses
Note: The Bereavement award can only be claimed by:
- the spouse, or
- Parents, if the deceased was unmarried and under 18
Therefore, if the deceased was over 18 and unmarried there is no claim for bereavement.
What about shock suffered by bereaved people?
It is important to know that compensation is not normally payable for the act of death itself.
Grief and sorrow can not be compensated:
However, if you witness the incident or the immediate aftermath of it, then it may be possible for you to be compensated if you suffered depression or stress as a result of what you saw. However, the law is in something of a mess at present.
Essentially remember the three features are:
- Your relationship to the deceased or injured person.
- You have to demonstrate that you suffered a mental injury such as stress or depression from the sudden and unexpected shock.
- You have to be present at the scene or more or less immediately afterwards to be able to qualify for any award of compensation for nervous shock.
Who is a Dependant?
- Co-habitee of more than 2 years cohabitation before death.
How do they calculate the claim?
Let us suppose that the deceased was the major breadwinner leaving behind a widow and two children. A Dependency Claim is made, by calculating the financial dependency, which those who are left behind had upon the deceased, and multiplying that by the number of years it would have been expected that the breadwinner would normally have lived.
Where would the claim be heard?
Serious claims are normally heard in the High Court before High Court Judges who are usually of a more senior rank than County Court Judges. The distinction is being rapidly blurred however, with County Court Judges now dealing with claims of a value, which even a few years ago would have been the preserve of the High Court. The distinction is now somewhat artificial and unnecessary.
The driver was not insured. What happens now?
Even though the driver against whom a claim is to be made may be untraced following a “hit and run” incident, or the driver of the vehicle involved has no insurance, those who were injured or dependants of those killed may be compensated by the Motor Insurers Bureau. This is a Company, which is funded by all the major Insurance Companies.
In simple terms, the Motor Insurers Bureau (MIB) appoints an Insurance Company to step into the shoes of the un-traced hit and run driver, or the uninsured motorist, and will pay out compensation on exactly the same basis as though a valid Insurance Policy had been in place. The uninsured motorist will be required to repay to the MIB all the compensation which the MIB have paid out to the injured person or to the deceased’s dependants.
Insurance Companies have a reputation for being slow to make payments to claimants. None the less there is a responsibility to those who have a claim against their Insured parties and it is essential that anyone embarking upon a claim against an Insurance Company should be well advised by a reputable authority
Should I get a solicitor to act for me?
Taking into account the above point, it is absolutely critical that those who are experienced assist those who are injured in the pursuit of proper compensation.
Do not be afraid to ask the solicitor of your choice what experience he or she has in dealing with serious claims.
- Insist that he/she is a qualified personal injury solicitor.
- What is the maximum compensation that they have secured for a client?
- Have they handled Criminal Law and Inquests before?
- Ask them to describe previous cases in which they have been involved and ask them what their views are on seeking interim payments.
- Are they prepared to represent you on a
no win – no fee
The Law Society, who is the governing body of Solicitors in England and Wales, has a panel of Personal Injury Lawyers who have demonstrated to the Law Society their expertise in personal injury cases.
There is also an association called the Association of Personal Injury Lawyers of which Claimant Solicitors are usually members.
Most Solicitors are more than happy to travel to see people at their home. Again, do not be afraid to ask a solicitor if he or she is willing to undertake home visits.
As explained above, you have the right to choose your own solicitor. It is critical in claims involving a deceased person, or a seriously injured person that a properly equipped and experienced Solicitor, who is able to devote proper time and effort in the pursuit of your claim, is appointed.
In the majority of cases, your solicitor must make a fatal motor claim within three years from the date of a death.
What happens when the case has been prepared?
Once your case has been prepared, your solicitor will ask the insurers of the person who you are trying to claim from (the other side) if it is willing to pay money.
If the other side admits liability and agrees to pay you money it may make an offer, or several offers, which are lower than the amount your solicitor thinks you are due.
If you are pursuing a dependency claim, the other side may try to use information in medical and employment records of the person who has died to argue your claim is to high. For an example, they may find out that the person who died, suffered from a heart condition and argue that the deceased would not have been expected to live as long as put forward in your case.
What happens if the offer is not acceptable?
If you are not offered an acceptable award quickly through negotiation, or if liability is not admitted, your solicitor may start legal action against the other side.
If a claim form has been issued, it does not necessarily mean your case will go to court. Your solicitor will continue to try to negotiate a settlement with the other side.
In some cases the other side prior to a final payment makes an interim payment (or part payment).
If a negotiated settlement cannot be reached your case will be decided in court by a judge. There will not be a jury. The judge will decide whether or not the other side is liable, and, if so, the size of your award.
There are many reasons why it may be better to negotiate a settlement out of court. You cannot pre-determine the decision of a judge and your case may take a long time to be heard in court.
The solicitor has mentioned a Part 36. What is he talking about?
At any stage, the other side can offer you an amount in full and final settlement called a ‘Part 36’ offer.
If court procedures have already started, this is called a ‘payment into court’ because the money will be sent to the court.
You and your solicitor have 21 days to accept or reject the offer.
If you reject a ‘Part 36’ offer, and the amount you finally receive, through negotiation or the courts, is lower, you may be liable for the other side’s legal costs from the date they made the offer.
You can also make a ‘Part 36’.
You and your legal representative should always carefully consider Part 36’ offers.
Sometimes lawyers forget about the distress and anguish the bereaved goes through, ask your lawyer to keep you updated, regularly. It is a good idea to keep notes of conversations with your solicitor and copies of correspondence so to keep track of your claim.
Can I appeal?
Yes you can if you disagree with a judge’s ruling you should talk to your solicitor. Appeals can be made but there are limited grounds for doing so. Appeals must be made within strict time limits. These limits are usually within one or two weeks of the judges ruling.
To proceed with an appeal your solicitor must show that the judge was wrong or that the decision was unjust because of a serious error in procedure. In most cases your solicitor will have to obtain the permission of another judge to go ahead with an appeal.
What should I do if I am not satisfied with my solicitor?
If, at any stage, you are unhappy with the service you are getting from your solicitor you can ask to speak to the partner in the practice responsible for helping clients who have complaints.
If you remain unhappy it may be possible to change solicitor. The organisations listed below will be able to give you advice about alternatives.
- The Motor Accident Solicitor Society (MASS)
Tel. No. 0117 929 2560
MASS is an association representing solicitors who specialise in fatal and injury motor claims.
- The Association of Personal Injury Lawyers (APIL)
Tel. No. 0115 938 8711
APIL is an association representing solicitors who specialise in claiming money following death or injury, including fatal motor claims.
Who pays the solicitor?
A specialist solicitor will only pursue a claim that he/she thinks will be successful. If you are awarded money, the other side will usually also have to pay most, if not all, your legal fees.
The other side will also usually pay for costs your has incurred, often known as ‘disbursements’, such as the cost of medical reports or barristers’ fees, as long as these costs were reasonable. In some cases the other side may not have to pay these costs. YOUR SOLICITOR WILL ADVISE YOU IN THIS CASE.
If your claim is unsuccessful, you may be liable to your legal costs and those of the other side.
How do I pay the solicitor?
Some people can pay their solicitor as they go along. You may be able to do this if:
- You can afford to pay a solicitor
- If you are insured for legal expenses. It is worth checking the details of a motor and house insurance policies and membership of bodies such as trade unions.
Solicitors usually pursue a civil claim if it is likely that the claim will succeed. However, to protect you in a case you do not succeed, many solicitors offer a conditional fee deal, often called a no win, no fee deal. This means your solicitor only receives payment for his/her work on your behalf if you win. You do not pay any legal fees up front and you do not pay legal fees if your case is unsuccessful.
In return, you have to pay an insurance premium to cover yourself against paying the other sides costs. Also, your solicitor may charge a success fee if your case succeeds, in addition to receiving his/her costs from the other side.
- The Insurance Premium
The insurance policy that covers you against having to pay the other side’s costs should be reasonably priced. Some solicitors may agree to pay the premium for you, as they can claim the cost back from the other side if you win. Your solicitor will be able to give details of insurance schemes. Both The Law Society and the Motor Accident Solicitors Society operate policies.
- The success fee
The success fee is paid to the solicitor, by the other side, if you win the case. It should not be deducted from your damages except in certain exceptional circumstances, which should be explained to you by your solicitor. The size of the success fee depends upon what you agree, in writing, with your solicitor at the start of your claim. By law, it can be up to the same amount again as your solicitor’s legal costs. In most cases solicitors agree a success fee of between 10% and 70% of their legal costs, depending on the likelihood of the case being successful.
- Contingency fees (Not Recommended)
Someone called a claims assessor may offer to handle your claim for a straight percentage of your award, sometimes as high as a third.
This type of payment method, known as a contingency fee, is not recommended. It is not the same as a conditional fee, although, confusingly, it may be referred to as a ‘no win, no fee’ agreement.
In addition, claims assessors do not have to posses any legal qualifications.