September 20, 2016

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September, 2016 – Issue 25

By Sharon Rahming-Rolle

Have you been in a traffic accident and suffered injuries? Have you fallen while away from home and hurt yourself? Has your parent, spouse, child, uncle or aunt died leaving you without a source of income that you depended on?

If your answer to any of the questions above is yes, then perhaps you may have an actionable claim against the person who was truly at fault for the accident that occurred. By ‘actionable claim’ is meant the ability to recover for financial losses sustained as a result of such accidents and losses.

The limitation period for bringing an action for losses sustained as a result of personal injuries is generally three (3) years from the date of the incident. In instances where you are seeking to bring an action against the Government or an institution carrying out a government function, the limitation period is reduced to twelve (12) months (one year). Once the limitation period expires you are no longer able to bring an action in the Courts of the Bahamas to recover for losses sustained. These limitations are imposed by the Limitations Act of the Bahamas.

Steps to Take to Secure a Personal Injuries Claim

1. Take photographs at the scene of the accident and any visible injuries to your body.

2. If involved in a road traffic accident, call the police and secure a police report.

3. Seek medical attention if necessary and request a detailed medical report.

4. Save and compile all sick slips and receipts for payments made for medical care and medication.

5. Seek legal advice on the value of your claim at the earliest opportunity and always prior to accepting any settlement payment from a third party, particularly an insurance company.

Is the ability to recover for losses lost if death occurs prior to recovery?

The short answer is no.

If someone is involved in an accident and dies as a result of the accident, having sustained financial losses and personal injuries prior to death, the Survival of Actions Act and the Fatal Accidents Act, allows for the personal representative of the deceased person to pursue any claim that the deceased could have pursued had he/she not died. Similarly, a person suffering injuries and losses may bring a claim against the Estate of a person who caused the accident.

Actions against a person at fault who dies must have been existing prior to their death or brought within six (6) months of the date that a personal representative applies to administer that person’s estate.

What if you were dependent on the deceased person?

Under the Fatal Accidents Act of the Bahamas a spouse, child, parent, niece or nephew or cousin of a deceased person is entitled to recover damages for lost dependency, that is, if you were dependent on a person who was your spouse, child, parent or uncle or aunt, a claim may be brought on your behalf to recover the sum of money you would have received from the deceased person throughout your lives.

In order to be successful in an application under the Fatal Accidents Act you must be able to prove, on a balance of probabilities, that you were financially dependent on the deceased. You must also prove the extent of your liability on the deceased person.

Various factors affect the extent of recovery in claims of these nature including, the disposable income of the deceased person at the time of death, in the case of children, their attaining the age of majority and prospects of financial support from the deceased for ventures such as tertiary level education and ‘discounts’ allowed at law for the vicissitudes of life, such as the likelihood of your demise within a certain amount of years.

Final Points for Consideration

1. Generally speaking, you can successfully recover for all losses sustained as a result of an accident which occurred due to the negligence or fault of another person.

2. Where your accident occurred while on the job, a large amount of your claim for financial losses are likely to be absorbed by the National Insurance Board.

3. Before filing a claim for personal injuries, it is important to consider whether the prospective Defendant has the means to satisfy your claim and/or whether the accident is covered by an insurance policy that would allow you to successfully recover your losses. If not, it may not be worth your while to pursue legal action as you may spend more pursuing the claim than you are able to recover.

4. As with any legal right, it is important not to sit on it without doing anything. Seek legal advice without delay or have someone make enquiries for you where you are confined to hospital for an extended period of time and unable to do so yourself.

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