A READER WHO said he had lost a relative in a motor vehicle accident recently, wrote to enquire what action, if any, could be taken towards compensation when a relative dies as a result of a fatal accident.
The short answer to the reader is that the law, by way of the Fatal Accident Act (hereinafter called 'the Act') provides for action to be taken with respect to compen-sation for damages.
The action to be taken is against the person who caused the death as a result of any neglect or omission on his part. The Act provides among other things that "When the death of a person shall be caused by wrongful act, neglect or default and the act, default or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured and although the death shall have been caused by under such circumstances as amount in law to felony."
IN WHOSE NAME
It must be noted that the action must be brought in the name of the personal representative of the deceased. This might require process in court to probate will or obtain letters of administration. If there is no personal representative or where no action has been taken by the personal representative within six months of the death, the near relatives may commence action in their names. However, it must be noted that such an action must be started within three years after the death. Failure to commence the action in court within three years can be cured by asking the court for extension of time to do so provided. However, that the court is satisfied that the interest of justice may be served. Near relatives have been defined by the Act to include wife, husband, parent, child, brother, sister, nephew or niece of the deceased, but parents include father and mother, grandfather and grandmother, step-father and step-mother.
FILING ACTION
Those who wish to file action must note that only one action may be taken. If the court finds in favour of the claimant, the court may award such damages to each of the near relations as the court considers appropriate in light of the actual or reasonable expected pecuniary loss caused to him by reason of death. Any award made by the court must be divided among the near relatives.
In assessing damages, the court may take into account the funeral expenses, if such expenses were borne by the near relations, any insurance money paid to the near relatives or benefit received, pension or gratuity which has been paid as a result of the persons death. However, the court may not consider any prospect of remarriage of the widow.
There is a duty on the claimant to deliver full particulars to the defendant. These particulars must outline and give full details of the claim for damages expected to be recovered.
Keith N. Bishop is an attorney-at-law and partner in the law firm of Bishop & Fullerton.
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