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National Workplace Day of Remembrance

Today is the National Workplace Day of Remembrance, in memory of all of those who have lost their lives while at work. It is easy to think that fatal accidents in the workplace belong in the past in Scotland, but tragically there are still situations where workers lose their lives through the negligence of their employer and unsafe working practices.

Balfour+Manson has a long history of standing up for those who have lost their lives in the course of their employment, through no fault of their own. We have supported families in a huge range of cases – from road traffic accidents, to deaths caused in the aviation, farming and oil and gas industries, to name a few. We also have significant specialist expertise in deaths following asbestos exposure and other industrial diseases. We have achieved successful results for families in high profile and complex cases such as the Piper Alpha Disaster, the Super Puma Helicopter ditching off Shetland and the Stonehaven rail crash.

So how can we help in cases involving the death of someone at work?

Where a person dies during the course of their employment, the Crown Office and Procurator Fiscal Service must conduct a prosecution or a Fatal Accident Inquiry (FAI). The closest relatives of the deceased will be invited to take part in the Inquiry, as will the deceased’s employer and an inspector appointed under the Health and Safety at Work Act 1974. The purpose of an FAI is to explore what happened to cause the death, whether anything can be done to prevent similar accidents in the future and provide a determination of the facts. It is not about assigning legal blame for the death. Balfour+Manson have experience of assisting with Fatal Accident Inquiries and would happy to provide further information to you.

We can also assist you raising a civil claim for damages for the loss of a loved one. As part of that process we recover employment and health and safety records and investigate the circumstances of the accident. Where appropriate we instruct independent experts to look into what happened and apply their expertise to comment on whether the accident could have been prevented. In our experience, families can find it very helpful to understand more about the circumstances of the death of their loved one.
As part of the civil claim, we seek financial damages from the party responsible for the death. While we recognise that no amount of money could ever make up for the loss of a family member, it can provide essential financial support at an extremely difficult time. There are many different aspects to a claim for damages and we would stress here that the position in Scotland is different to in the rest of the UK, which is why obtaining specialist advice is so important.

Where a deceased person was financially supporting a family member (such as being the main earner, contributing to the household income or paying maintenance to support their children) we can seek to recover the lost financial support from the responsible party. We can recover the deceased’s lost wages from the date of the accident to their likely date of retirement as well as the pension income they would have received. We can also recover the cost of the deceased’s funeral, as well as their ‘services’, which covers the non-financial things that a deceased person did for their family – which can often be simple things, like doing the gardening or contributing to childcare.

We can also seek financial damages for the emotional toll of losing a loved one. A range of close family members are entitled to claim in Scotland:

  • The deceased’s spouse or civil partner or the cohabitee of the deceased;
  • The parent or child of the deceased;
  • The brother or sister of the deceased or person who was brought up in the same household as the deceased;
  • The grandparent or grandchild of the deceased;
  • Any other ascendant or descendant of the deceased.

There is no distinction in Scots law between whole/half relatives, and step-relatives and adopted relatives are treated as full relatives of the deceased. The test is whether the relative had been accepted into the deceased’s family, or vice versa.

An important point to note is that where someone has died as result of asbestos exposure and a claim has been settled in England, a claim for the loss of a loved one can also be made in Scotland, in appropriate circumstances. The English rules as to which family members can claim are much more limited, so it is definitely worth seeking advice on this point from a Scottish specialist, like Balfour+Manson.

In addition, the deceased’s executor is entitled to make a ‘transmissible solatium’ claim, which entitles them to seek damages for the deceased’s pain and suffering prior to death, in the deceased’s place. The level of this award can vary depending on a number of circumstances, including how long the deceased suffered before their death and how conscious/aware they were of what was happening.

As a claim progresses we require to prepare ‘relationship statements’, where family have an opportunity to give an account of their relationship with the deceased. This can start out as a difficult process but often it becomes quite cathartic – giving family members a chance to bring their lost loved one to the forefront of the claim and set out to the responsible party the devastating impact of their loved one’s death on their family.

If you would like more information or advice, please get in touch to arrange a free meeting.