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 using civil law, pursued by a solicitor who you instruct.

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 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. (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.

A suitably qualified and experienced solicitor can advise you 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 an inquest (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.

You can find a list of legal firms that specialise in fatal injury cases on the Brake website at www.brake.org.uk/legal. All of the firms listed have signed up to Brake's Solicitor Code of Conduct for supporting road crash victims, and also kindly donate to the charity.

Any solicitor you are considering using should agree to meet with you for free initially, to advise you whether they think you have a claim or not. You may wish to meet with more than one solicitor. Different solicitors have different expertise and experience, different fees, and different ways to pay them. It is important you understand any agreement you sign with a solicitor and particularly any costs involved in them pursuing a claim for financial support for you.

Your nearest specialist solicitor may work some distance from your home. However, it is more important to hire a specialist than a solicitor near you, or one you know already. You can do a lot over the phone, on video calls, by email and post, and some solicitors will visit you at home.

The following organisations provide lists of solicitors that specialise in fatal injury cases:

• The Association of Personal Injury Lawyers (APIL)
  call 0115 943 5400 or go to www.apil.org.uk

• The Motor Accident Solicitors Society (MASS)
  call 0117 925 9604 or go to www.mass.org.uk

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?
• 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?
• How will we communicate? Will you be available to explain things to me and answer my questions regularly through meetings, emails or over the phone?
• Will you be able to visit me at a place that is convenient and comfortable for me, such as my home?
• 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?
• Do you follow the Rehabilitation Code 2015, which promotes early intervention and collaboration between parties?
• How will I pay you and how much will it cost me if I win and if I lose?
• Will you support me and my family by attending any hearings and criminal court proceedings?
• Will you help me apply for any government benefits I am eligible for?
• Are you a member of The Association of Personal Injury Lawyers (APIL) or The Motor Accidents Solicitors Society (MASS)?

Consider whether the solicitor listens to your questions and answers them fully. The solicitor may ask you questions that seem challenging or unnecessarily detailed. Do not be put off by this, it shows that they are experienced and will prepare your case carefully. If you are in any doubt about a solicitor, consult another. Some claims take years, so it is important you are happy with your solicitor of choice.

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.

For a list of solicitor firms that specialise in fatal injury cases and have signed up to Brake's Solicitor Code of Conduct for supporting road crash victims, go to our Legal support webpage.

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 may have to pay for if you win or lose your claim.

Some people pay 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 policies 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 will happen 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.

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 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.

Solicitors are not allowed to make `cold calls'. If you receive a call from someone who you have not contacted, they are likely to be a rogue company whose priority is to make money rather than look after the best interests of you and your family. Only deal with solicitors you contacted.

Someone called a claims assessor, claims handling company, or 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 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 not be independently represented by a suitably qualified solicitor, and you may receive far less compensation than you are entitled to.

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 ‘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 legal ombudsman. Call 0300 555 0333 or go to www.legalombudsman.org.uk.

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 some liability (or blame) being established.

1. Dependency claims

There are two types of dependency claim that can usually be made.

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 can also include loss of services provided by a person who has died, such as childcare, DIY, gardening or other household and domestic tasks. This is called a services dependency claim. An expert may be required to help you work out what services you have lost. Your solicitor will tell you if this is necessary.

It is important that all potential dependants are identified in the claim. Your solicitor will ask you questions to find out who may have had a dependency of any kind on the person who has died.

Evidence including income, pensions, employment records and evidence of the services provided by the person who has died may be required to prove dependency claims.

2. Bereavement awards

Some people may be entitled to a fixed, statutory bereavement award, currently £15,120. This is only payable to the wife, husband or civil or cohabiting partner of someone who has died, or the parents of a child under the age of 18 who has died. Your solicitor can tell you if you are eligible for this award.

3. The suffering of someone who has died

If someone died after surviving for a period of time, 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.

4. Burial or cremation expenses

It may be possible to make a claim for the costs of a funeral (burial or cremation) and associated expenses such as a gravestone. You should keep all receipts.

5. 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. Your solicitor will advise you.

You may be entitled to make a claim for the loss of love and affection provided by the person who has died. Your solicitor can tell you if you are eligible for this.

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

Once your solicitor has prepared your claim, they will contact the insurance company of the person you are making a claim against.

If the insurance company admits liability, your solicitor will start negotiating with them to determine how much compensation they should pay.

If the insurance company denies liability, your solicitor will request evidence about the crash from the police, coroner and witnesses. In this case, your claim may take longer to pursue.

The insurance company may try to argue that your claim is too high. For example, if you are pursuing a dependency 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.

If a claim is likely to take some time, it may be possible to receive an early, partial payment called an Interim Payment, to help cover costs such as funeral expenses. Your solicitor will tell you if this is possible.

Knowing that solicitors 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 solicitor to keep you updated on a regular basis about how your case is progressing.

Offers made during negotiation

Both sides can make offers of compensation during negotiations. Offers can be made over the telephone, in a meeting, 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.

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 is likely to continue trying to negotiate a settlement.

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

If an 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.

Settlement of cases brought on behalf of children under the age of 18 have to be approved by a 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.