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A grieving relative of a brain injured person is comforted by friends. This article looks at what happens to a compensation claim if the injured person dies before conclusion.

When an accident occurs which results in a serious injury, there will be times when the injured person passes away before their claim for damages is finalised. Their injuries may mean life expectancy is shortened, their injuries may cause additional risk factors for health, or negligent or delayed medical care may reduce their chances of survival.

If the injured party dies before their claim has come to an end, what happens to that claim, can it continue, who can act in their place, and who will benefit from any compensation award?

Continuation of a compensation claim

Following the death of an injured party, in most cases it is possible for the Estate of the deceased person to continue the claim on behalf of the Estate, under the Law Reform (Miscellaneous Provisions) Act 1934.

Who can bring the claim?

Who can bring the claim on behalf of the Estate of the deceased person will depend on whether there is a valid will or not. If there is a will, the named executors will be able to act on behalf of the Estate, if there is no will, the closest relative can apply to be the administrator and continue the claim on their behalf. This is usually the person’s spouse, adult children, siblings or parents.

How will damages be decided?

It is necessary in the majority of personal injury claims for there to be a medical report relating to the injuries sustained in the accident. If the medical report has already been carried out and finalised prior to death, the valuation of the claim in respect of general damages (for pain, suffering and loss of amenity) will be relatively straight forward.

If no medical report was completed, then the person’s medical records will be used and the parties will need to reach agreement as to an appropriate amount to compensate for general damages.

In addition, special damages will be calculated, which are the financial losses which the deceased incurred following the accident, and may include loss of earnings, travel expenses, medical costs, property damage, the purchase of specialist equipment and care claims.

The claim for both general and special damages will be limited to the period between the date of the accident and the date of death.

It will also be possible to claim reasonable funeral expenses if the accident caused the death.

Who will benefit from the claim?

Once agreement has been reached on the value of the claim, payment will be made for the Estate. This means that the money is paid out in line with the deceased’s will, or in the case of no will being left by the deceased, the rules of intestacy.

Bereavement awards and dependency claims

If the death is as a direct result of the accident, it may be possible for an additional claim to be made under the Fatal Accident Act 1976. Under this Act:

  • A fixed sum bereavement award of £12,980 for deaths occurring before 1 May 2020, or £15,120 for deaths occurring on or after 1 May 2020. The only people entitled to this award are a wife, husband or civil partner of the deceased, or in respect of a deceased unmarried child under 18, between the parents or to the mother (if the parents are not married). If more than one person is entitled to the award, it must be shared between them.
  • Dependency claims can be brought by the deceased’s husband, wife and civil partner (including ex-spouses and partners, and those who have lived as such for 2 years before the death). Parents, children, grandchildren, siblings, aunts, uncles, in-law and stepchildren may also be able to claim. They may be able to claim a financial loss as they no longer have the person’s financial support, or the benefit of services the person carried out for them, such as if the deceased person used to assist with gardening, DIY or household chores. These claims can be fairly complicated to calculate and can lead to quite large awards.
  • Funeral expenses can be recovered under the Fatal Accident Act if they have not already been claimed as part of the personal injury claim.

How Brain Injury Group can help

If you are considering bringing a claim for brain injury, all our member law firms are available for a free, no-obligation chat.

To become a member of Brain Injury Group, law firms need to meet our strict joining criteria which ensures all members have the right experience to deal with brain injury claims of all severities and a service which includes not only obtaining financial settlement, but also access to rehabilitation, care and support to help rebuild lives.

If you, or someone you know, has been affected by brain injury and would like further advice, email enquiries@braininjurygroup.co.uk or find your closest member firms on our website: www.braininjurygroup.co.uk/find-brain-injury-solicitor/

With thanks to…

This article was produced in association with Tim Jones, Legal Director at Brain Injury Group member law firm Enable Law. Based in Taunton, Somerset, Tim assists clients across the South West who have suffered brain, spinal and serious orthopaedic injuries as a result of accidents. He is also able to assist people in bringing claims against the Criminal Injuries Compensation Authority.

Enable Law is a specialist medical law and personal injury practice with offices across the South West, South Coast and London.

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