Can I claim compensation?

Information and advice on claiming compensation; hiring a solicitor to pursue compensation; rogue offers of help; paying your solicitor; types of compensation; fatal motor claim procedures.

Can I claim compensation?

There is no automatic compensation for people bereaved by a road crash. However, compensation can often be awarded through a legal process using civil law, pursued by a solicitor you hire.

To award compensation, civil law requires someone (usually a driver in the case of road deaths) to be found at least partly responsible for a death. Sometimes this is possible even if no-one was charged with a criminal offence.

Compensation is then usually paid by the responsible person’s motor insurer. If they were uninsured, or are untraceable, then the money is usually paid by an organisation called the Motor Insurers’ Bureau. (Find out more at www.mib.org.uk.)

Compensation can be awarded for different things. The amount of compensation awarded for these things is usually decided through negotiation, but sometimes by a court.

Even if you do not have funds to pay a solicitor, it is often still possible to pursue a claim for compensation if you have a good claim.

Instructing a solicitor to pursue compensation

To pursue a claim for compensation, you need to instruct a solicitor.

You are advised to use a solicitor who specialises in fatal injury cases and who is qualified to act in the country which has jurisdiction. That normally means instructing a Northern Ireland qualified solicitor if the crash happened in Northern Ireland.

A solicitor you are considering using should agree to meet with you for free initially. You may wish to meet with more than one solicitor to ensure you are choosing the best one for you.

Here are some questions it is advisable to ask, to help you decide which solicitor to choose:

  • Do you think I have a strong claim and are you willing to take on my case?
  • Are you qualified to practise within the jurisdiction of the country where the crash occurred?
  • What experience do you have in handling similar cases? Can you give me examples and their outcomes?
  • How many similar cases have you handled in the past five years?
  • What expertise do you have relevant to my case?
  • What fees do you charge?
  • What arrangements can you put in place for payment of these fees so that compensation I receive is not unduly reduced to cover legal fees, and so that I do not have to pay much, or any, legal costs if I lose?
  • Will you handle my case yourself entirely, or involve colleagues?
  • If you plan to involve colleagues, how much will they be involved, and if a lot, can I meet them now?
  • How will we communicate during the process? Will you be available to explain things to me and answer my questions regularly through meetings, emails or over the phone?
  • Are you a member of APIL and/or MASS?

It is important you sign an agreement with your solicitor that you understand thoroughly and consider fair.

It is also helpful to keep notes of conversations with your solicitor and copies of correspondence, so you can keep track of your claim.

Do not delay

Do not delay consulting solicitors. If you have a good chance of compensation, the solicitor you choose will want to work on your case as soon as possible. It can take time to compile evidence to support your case, and the earlier you hire a solicitor, the sooner compensation can be awarded. Most claims for money must be submitted within three years of the date of the death, although sometimes claims must be made within two years. If the crash occurred abroad, time limits for claims may be shorter, and can be one year or less.

Complaining or changing 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 looking after clients; often called the complaints partner. If you remain dissatisfied, it may be possible to change solicitor. If you have a complaint about a personal injury solicitor, you can complain to the Law Society of Northern Ireland. Call 028 9023 1614 or go to www.lawsoc-ni.org.

Rogue offers of help

Sometimes a ‘claims assessor’, ‘claims farmer’, or ‘claims management company (CMC)’, may offer to pursue your claim for you, often on a no win, no fee basis. Often they are not personal injury solicitors, nor qualified or regulated to the same standards of solicitors.

You may also be approached by someone representing the motor insurance company of a driver you want to claim from, offering to settle your claim directly and quickly with you, without the need for you to instruct a solicitor.

Do not accept these offers of help. If you do, you will probably not be independently represented by a suitably qualified solicitor, and you may be awarded far less compensation than you are entitled to.

Paying your solicitor

There are various ways of funding a claim and it is crucial you talk to your solicitor about the options available. Make sure you understand exactly what you may have to pay.

Some people pay their solicitor as they go along, either because they have the funds to do so, or they have an insurance policy that covers legal costs and expenses. Your solicitor can help you check any insurance policies you have to find out if you are covered for legal fees.

Legal aid may be available to you. Your solicitor can tell you whether you are eligible for legal aid and help you complete the application forms.

It is also possible to pay your solicitor at the end of the case. If you win your case, the person you are claiming compensation from will probably have to pay some of your legal fees.

There are complex laws governing how solicitors are paid in compensation cases. It is important that you understand, from the beginning, how your solicitor intends to cover the costs of your claim and any fees you may personally be liable for, at any time, if you win or lose your claim.

It is particularly important that you do not sign an agreement that would result in your solicitor unreasonably taking an amount of your compensation if you win your case. You should also be protected from being liable for hefty legal costs if you lose your case.

Types of compensation

Some types of claims for compensation are listed below. Your solicitor may advise you to make one, several or none of these claims. All claims depend on liability being established.

  1. Dependency claims

In certain circumstances, people who were financially reliant (or who had an expectation of becoming financially reliant) on a person who has died can claim for the loss of that support. This is called a financial dependency claim. The amount that can be claimed is not fixed. It depends on the amount of support provided by the person who has died and how that would have continued in the future.

A dependency claim often includes a claim for loss of income. This amount will be worked out according to how much the person who has died earned, how long they would have continued earning if they had not died and other factors.

A dependency claim may include a claim for loss of services provided, such as childcare, DIY, or other domestic jobs which were undertaken by a person who has died.

If you are making a dependency claim for yourself, or on behalf of others such as a child, your solicitor will help you consider all losses and help work out how much to claim in total. Evidence including income and employment records and household bills may be required to prove dependency claims.

  1. Bereavement awards

Some people may be entitled to a fixed, statutory bereavement award, currently £15,100. This is only payable to the wife, husband or civil partner of someone who has died, or the parents of a child who has died. Your solicitor can tell you if you are eligible for this award.

  1. The shock suffered by bereaved people

You may be able to claim money for the psychological injury you have suffered as a result of your bereavement. There are strict criteria about who can claim. If you do not meet these criteria you may not be able to claim, even though you have suffered significant trauma.

  1. The suffering of someone who has died

If someone died after surviving for a period of time then it may be possible to claim compensation for their pain and suffering. The amount that can be claimed is based on the amount of time that the person suffered and the extent of their awareness or suffering.

  1. Burial or cremation expenses

Reasonable costs of a funeral (burial or cremation) and associated expenses such as a gravestone can usually be claimed from a liable party. You should keep all receipts.

  1. Claim for injuries

If you, or anyone close to you, were injured in the crash, it is important to find out if you can make a claim for those injuries and losses resulting from injuries. Your solicitor will advise you.

Fatal motor claim procedures

Preparing and negotiating your claim

Your solicitor will prepare your claim by collecting evidence, such as proof of past earning levels of the person who died.

Once your solicitor has prepared your claim, they will contact the motor insurer of the person from whom you are trying to claim (the other side).

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 and has asked for. For example, if you are pursuing a loss of support claim, the other side may use information in medical and employment records of the person who has died to argue your claim is too high.

Most claims in which liability is admitted are settled through negotiation, without the need to go to court. You can refuse or accept any offer made. Your solicitor will advise you whether an offer is reasonable.

Knowing that lawyers and insurance companies are negotiating over the value of your loss can be distressing, particularly if your case takes time to be resolved. Ask your lawyer to keep you updated on a regular basis about how your case is progressing.

Offers made during negotiation

Both your solicitor, and the other side, can make offers of compensation during negotiations.

Either side has a right to accept or reject an offer. Your solicitor should explain any offer you receive, and help you decide your response.

In some cases a partial payment called an Interim Payment is made by the other side prior to a final payment, to help cover costs such as funeral expenses. This can be helpful for people facing financial hardship as a result of their bereavement.

The defendant (other side) may pay a sum into court of an amount which it thinks is sufficient to settle the claim in full. This is known as ‘making a lodgement’ or ‘making a payment into court’. There are rules about how costs and expenses are affected by lodgements and payments into court and your solicitor can explain these to you.

Going to court

If your compensation cannot be agreed through negotiation, or if liability is not admitted, your solicitor may start legal action against the other side.

However, even after legal action has started, your solicitor is likely to continue to try to negotiate a settlement with the other side.

Sometimes, the other side will make an acceptable offer just before a case is heard in court.

If agreement cannot be reached, your claim will be heard in a County Court or the High Court by a judge.

Success in court is not guaranteed; you cannot pre-determine the decision of a judge. Court cases may also take a long time to be heard.

Cases brought on behalf of children are always decided in court. In most cases, money awarded to children is kept and administered by the court in a special account until the child is 18 years old.


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