Memorial Day highlights unfairness of bereavement damages

PostedMay 10, 2017

Current law in England and Wales out of step with the rest of the UK

Coping with the loss of a loved one is incredibly difficult. When this loss has been tragically caused by another’s negligence however, coming to terms with the fact it could have been avoided, can make this all the more devastating for those left behind.

No amount of money will ever truly reflect the loss suffered. It would be wrong, however, to make no attempt to acknowledge the devastation caused. When the Fatal Accidents Act was amended in 1976 to introduce damages for bereavement, the intention was to provide surviving relatives with access to a level of compensation acknowledging and reflecting the grief, trauma and devastation suffered by their loss.^[1]

The Law Commission ^[2] highlighted five distinct purposes which an award of bereavement damages might be seen to serve. Arguably, the most important are to compensate surviving relatives for:

The grief and sorrow suffered; and
The loss of care, guidance and ‘society’ (i.e. love, companionship, affection, etc.) that their loved one would have provided to them.

It could perhaps be suggested that to enable the full assessment of both of these factors, consideration is required on the specific circumstances of the loss suffered.

Level of award

In Scotland there is no fixed amount for bereavement damages. The level of compensation is assessed by the Court on the individual facts of each case and all the circumstances.

While some critics may argue this leaves too much uncertainty and unpredictability as to the level of awards that may be made, many others consider instead that it is an appropriately thoughtful and humane way to allow the Court to really take into account and consider the specific circumstances of each individual case.

In June 2015, in the Scottish case of Claire Anderson and Others v Brig Brae Garage Limited, the Court awarded the sum of £140,000 for “loss of society”, which mirrors factors we take into account when assessing bereavement damages England. This is the highest award to date.

Many when reading this may question why this level of award is so notable given the loss that Mr Haining’s family suffered and the ever present fact that no sum will ever be anywhere near adequate for the loss suffered.

One of the main reasons is because the case reiterated the stark contrast between the level of damages awarded in Scotland and the current award for statutory bereavement damages in England and Wales, which is currently fixed at £12,980 for fatal injury claims after 1st April 2013.

Many would agree that this is a very low figure and that it is impossible for the two distinct purposes of the bereavement award highlighted above to be reflected in a fixed sum.

It is now the case that England and Wales have the lowest level of award for bereavement damages in the whole of the UK. On 1 April 2016 Northern Ireland increased its bereavement damages award to £14,400. Moving forwards this figure will be adjusted every three years in line with inflation.

In November 2013, a research project was undertaken by the Association of Personal Injury Lawyers (APIL) into bereavement damages. The findings confirmed that over 80% feel the level of bereavement damages should be above £15,000, while over half (57%) of people think the level should be over £100,000.^[3]

This clearly shows how out of date and touch the current level of award is. To put this into context, APIL also highlighted the fact that the current bereavement damages available in England are actually lower than what is availablefor a serious injury to a thumb, where it is possible for compensation of up to £28,352 to be made.

Individuals who are entitled to claim statutory bereavement award

In addition to what has been described by Neil Sugarman, APIL president, as an “offensively low” level of damages there is also a serious question surrounding the fairness of who may be entitled to claim bereavement damages in England and Wales.

Currently under the Fatal Accidents Act, the following people can claim bereavement damages:

Wife, husband or civil partner of someone who passed away
Parents of an unmarried legitimate child aged under 18
The mother of an unmarried illegitimate child aged under 18

This means that in England and Wales, children, unmarried partners andstep-parents are unable to receive any bereavement award for the loss of a loved one. Similarly, the parents of children who have passed away over the age of 18 are unable to receive an award.

Again using Scotland as a comparison, the Court has a much wider discretion as to who can be awarded loss of society. This can be to a wider group of “relatives”. The definition of relatives provided also allows some consideration of the individual relationship.

This clearly fails to represent the current dynamic of our society where people have long lasting committed relationships prior to or without marriage. It also fails to properly take into account the effect of the loss of a parent on any child regardless of age, never mind the fact that the grief suffered by a parent who loses a child does not stop when their child turns 18.

Workers’ Day

Last Friday, 28th April, was International Workers’ Memorial Day, during which the need for the law on bereavement damages in England and Wales to change was highlighted once again.

“Families are not only going to have lost their mothers, brothers, fathers or children in incidents that should never have happened,” said APIL president Neil Sugarman. “But then they are just expected to accept the offensively low bereavement damages that are available to them, if they are even eligible to receive them.”

APIL has long been calling for the law on bereavement damages to be changed and will again be raising the issue with parliamentarians after the election. It is clear that at present, the law in England and Wales remains out of line with rest of the UK.

^[1] 'Personal Injury Litigation – Assessment of Damages' report (1973) (Law Com no. 56).

^[2] http://lawcommission.justice.gov.uk/docs/cp148_Claims_for_Wrongful_Death.pdf, page 77, paragraph 3.127

^[3] http://www.apil.org.uk/files/campaigns/bereavement-damages-research-report-2013.pdf