Section 5: 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 called civil law, pursued by a solicitor who you instruct.

To award compensation, civil law usually requires someone (usually a driver in the case of road deaths) to be at least partly responsible for a death.

Sometimes this is possible even if no one was charged with or convicted of a criminal offence. Compensation is then usually paid by the responsible person’s insurance company. If they were not insured, or can’t be found, then an organisation called the Motor Insurers’ Bureau will deal with the claim. (To find out more, go to www.mib.org.uk.)

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

A qualified and experienced solicitor can advise you and your family whether you have a claim for compensation, pursue the claim on your behalf, and work to ensure you are awarded the compensation you are entitled to.

As well as advising you about a compensation claim, an experienced solicitor will be able to help with other matters, including:

• applying for government benefits you are entitled to
• helping you prepare a victim statement
• representation at a Fatal Accident Inquiry (see Section 4: Court cases).

Your solicitor should also support you and your family during any criminal proceedings.

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 Scottish qualified solicitor if the crash happened in Scotland.

The Law Society of Scotland provides details of solicitors specialising in different areas of law on its website at www.lawscot.org.uk.

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 that you can 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? (See below for more information on paying your solicitor.)
• 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 The Association of Personal Injury Lawyers (APIL) or The Motor Accidents Solicitors Society (MASS)?
• Are you accredited as a specialist in personal injury law or trauma-informed law by the Law Society of Scotland?

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 consulting solicitors. If you have a good chance of getting 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 must be submitted within three years of the date of the death, although sometimes claims must be made within two years. If the crash happened abroad, time limits for claims may be shorter, and can be one year or less.

Your solicitor may also be able to request for Interim Payments to be made in advance of any final settlement.

Paying your solicitor

There are different ways to fund a claim for compensation and you should talk to your solicitor about the options available. Make sure you understand exactly what you will have to pay for if you win or lose your claim.

Some people pay for their solicitor as they go, either because they have the funds to do so or because they have an insurance policy that covers legal costs and expenses. Your solicitor can help you check any insurance policy to find out if you are covered for legal fees. Some insurance policies have a limit on how much they will pay to cover legal costs. You should talk to your solicitor about what happens when this limit is reached.

It is usually 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.

Many people do not have available funds to pay a solicitor to pursue a claim for them. However, it should be possible to reach an agreement with your solicitor that means you won’t have to pay anything, even if you lose your claim.

Depending on the agreement you sign with your solicitor, you may also have to pay your solicitor additional fees from your compensation, such as a ‘success fee’ for winning your case. This is usually a percentage of
the compensation you receive.

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 be personally liable for, at any time, if you win or lose your claim.

It is important that you do not sign an agreement that would result in your solicitor unreasonably taking a large amount of your compensation if you win your case. You should also be protected from having to pay expensive legal costs if you lose your case.

Legal aid

If you can’t afford to pay your own legal costs, you may be entitled to legal aid. Legal aid helps you pay for legal advice and representation provided by a solicitor and is paid for by the Scottish government.

To find out if you are entitled to get legal aid you will need to find a solicitor that does legal aid work. They will be able to talk you through your options, let you know if you’re likely to get legal aid and help you to apply for it.

You’ll usually need to show that you can’t afford to pay for legal help yourself and your problem is serious.

You may have to pay some money towards the legal costs of your case, or pay costs back later.

You may not need to pay anything at all, depending on your financial position and the type of legal help you need.

To find out more and get help finding a solicitor who does legal aid work, call the Scottish Legal Aid Board helpline on 0131 226 7061 or go to www.slab.org.uk.

Rogue offers of help

Someone called a claims assessor, a claims handling company or a claims management company (CMC) may offer to pursue your claim for you, often on a ‘no win, no fee’ basis. They are not personal injury solicitors, and are not qualified or regulated to the 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 hire a solicitor.

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

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 person at your solicitor’s firm who is responsible for looking after clients. This person is often called the ‘client relations manager’.

If you remain dissatisfied, it may be possible to change solicitor.

You can read information about making a complaint against a solicitor on The Law Society of Scotland’s website at www.lawscot.org.uk.

The Scottish Legal Complaints Commission can help with your complaint and provide a template letter to help you write a complaint about a solicitor.

You can also complete an online form to make a complaint about a solicitor. To find out more, call the Scottish Legal Complaints Commission on 0131 201 2130 or go to www.scottishlegalcomplaints.org.uk.

Some types of 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.

Loss of support claims

In certain circumstances, people who were financially reliant on a person who has died can claim for the loss of that support. The amount that can be claimed is not fixed. It depends on the amount of support provided by the person who has died.

A loss of support 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 loss of support claim can also be made for loss of income from a pension of someone who has died.

Service claims

A service claim may include a claim for loss of services provided by a person who has died, including childcare, DIY, or other domestic jobs. It can also include care provided for a loved one after a crash, prior to death, for example if they received nursing or care at home.

Loss of society claims

You may be able to claim some level of compensation for grief and anxiety caused by a loved one’s death and the loss of their ‘society and guidance’. The amount that can be claimed depends on the nature of your relationship with a person who died and other factors. Often, relatives of someone who has died are entitled to make a claim for loss of society. This includes spouses or partners, parents, children, grandchildren, siblings and others. Your solicitor can advise you.

The suffering of someone who has died

If someone died after surviving for a period of time following the crash, 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 the pain. It may be possible to claim for loss of expectation of life, if someone knew they were going to die.

Funeral expenses

It may be possible to claim for the costs of a funeral and associated costs such as a gravestone. You should keep all receipts.

Claims for children

An adult will normally pursue a claim for compensation on behalf of a child or children under the age of 18. This adult is usually a parent or guardian. The court may appoint someone independent to act on the child’s behalf.

Claims 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. This could include a claim for your pain and suffering, loss of earnings, the cost of medical treatment, adaptations to your home and aids to assist you in your day-to-day life. Your solicitor will tell you if you are entitled to make a claim.

You and your solicitor will decide whether you should claim, what claim(s) to submit and how much to claim. Your solicitor will prepare your claim by collecting evidence, such as police reports, medical records and proof of earnings of a person who has died.

Once your solicitor has prepared your claim, they will contact the insurance company of the person you are making a claim against (called 'the other side' or 'the defender'). If the other side admits liability, your solicitor will start negotiating with them to determine how much compensation they should pay.

The other side may try to argue your claim is too high. For example, if you are pursuing a loss of support claim, they may argue that the person who has died would not have earned as much money in the future as your solicitor is claiming. The negotiations can take a long time, but most claims where someone has admitted liability are settled through negotiation without needing to go to court.

Knowing that solicitors and insurance companies are negotiating over the value of your loss can be distressing, particularly if your case takes a long time to be resolved. Ask your solicitor 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. Offers can be made over the telephone, in a meeting, or by letter or email. Some offers are made without any acceptance of liability.

Either side has the right to accept or reject an offer. Your solicitor should advise you about any offer you receive, the risks involved in accepting or not, and help you reach a decision. You should consider all offers seriously.

If a claim is likely to take some time, it may be possible to accept an early, partial payment called an interim payment, to help cover costs such as funeral expenses. This can be helpful if you are facing financial hardship as a result of your bereavement.

Going to court

If your compensation cannot be agreed through negotiation, or if no one admits liability, your solicitor may start legal action against the other side.

Even after legal action has started, your solicitor will continue to try to negotiate a settlement with the other side.

The other side can make a formal offer (called a 'tender') or an informal offer at any point throughout a court action. Your solicitor will help you decide whether to accept or reject an offer.

If an agreement cannot be reached, your case will be heard in the Court of Session or the Specialist Personal Injury Court. Both of these courts are in Edinburgh. Sometimes a case is dealt with in a local Sheriff Court.

Court cases are usually settled in advance and it is unlikely that you will need to give evidence in court.

Success in court cannot be guaranteed. You cannot pre-determine the decision of a sheriff or jury. Court cases may also take a long time to be heard.