Bereavement damages: an award or an insult?

14 February 2020

The Ministry of Justice has announced that there will be no substantial reform to the current bereavement damages system in England and Wales.


This comes in the wake of the landmark case in 2017 Smith v Lancashire Teaching Hospitals NHS Foundation Trust in which the Court of Appeal held that cohabitants who had been in a relationship for at least two years should be entitled to bereavement awards.

While the Government is willing to allow cohabitants to claim damages, it has made it clear that it will not be carrying out a consultation on the bereavement damages regime more widely.

This is despite the fact that the Association of Personal Injury Lawyers (APIL) has stated that the current system is in urgent need of reform because Claimants face a lottery based on where they live.

What are bereavement damages?

Under the Fatal Accidents Act 1976, bereavement damages can be claimed following the unlawful death of a loved one. It is a form of personal injury compensation in cases where the death has occurred as a result of negligence. In England and Wales, this award is capped at £12,980 for all Claimants.

The current legislation entitles you to claim the bereavement award if you are:

  • The spouse or civil partner of the deceased; or
  • In cases involving the death of a child, the parents if the child was legitimate, or the mother if the child was illegitimate.

 

Who is excluded?

Despite the fact that some cohabitants are now entitled to bereavement damages, the category of people entitled to the award remains very restricted. The following categories of individuals are not entitled to a bereavement award:

  • The unmarried father of a child under the age of 18;
  • Parents of an adult child who is over the age of 18;
  • Children who have lost a parent (regardless of the child’s age);
  • Siblings; and
  • Grandparents.

 

Is £12,980 satisfactory?

The Ministry of Justice claims that the existing system for bereavement damages in England and Wales is reasonable, proportionate, practical and not discriminatory. They reason that the rules are intended to be a ‘token payment’ to a limited group of people.

There is a vast inequality on the basis of where in the UK you live. In Northern Ireland, Claimants receive bereavement damages of £15,100. Whereas, in Scotland it is awarded on a case-by-case basis and can be as high as £140,000 as there is no statutory limit. This disparity is grossly unfair and illogical.

No amount of compensation will ever compensate for the death of a family member and as a team of medical negligence and personal injury lawyers who support families though claims which involve the death of a loved one, we appreciate that these apparently arbitrary sums do little to heal the pain. However, £12,980 is extremely low and fails to adequately compensate the devastating harm that has occurred. We believe cases should be decided on an individual basis to reflect the loss of that particular individual’s life as opposed to a flat rate for everyone. It is deeply unjust that the current meagre award means that it can be cheaper for a person to be killed than to compensate them if they are injured.

The Fatal Accidents Act reflects outdated social attitudes such as the concept of legitimacy. Unmarried fathers of ‘illegitimate’ children who pass away should be entitled to bereavement damages in order to ensure fairness and justice. Moreover, the law fails to account for the suffering of siblings, grandparents, parents of adult children and children who lose a parent.

It is clear that the Ministry of Justice has taken a step in the right direction by entitling cohabitees to claim bereavement damages. However, the law arguably remains discriminatory and in need of modernisation. The system requires drastic reform so that cases are decided on their individual merits and all members of a loved ones’ immediate family are entitled to compensation for their death.

Further information

We often act for clients who have lost loved ones through medical negligence and accidents. In addition to helping clients claim for bereavement damages, we also work with clients to claim for financial and other compensation arising out of the death. If you would like to discuss a possible medical negligence or personal injury claim, please contact one of our lawyers on 020 7814 1200, or email us at clinnegenquiries@kingsleynapley.co.uk.

About the authors

Sevim Ahmet is an Associate in the Medical Negligence and Personal Injury team department and an experienced specialist in clinical negligence claims of all types, often acting for bereaved families or on behalf of children and adults who have suffered permanent and profound injuries.

Eleanor Lynch is a trainee solicitor in the Medical Negligence and Personal Injury team, where she assists with claims relating to injuries arising from birth, fatal accidents, colorectal injuries and delayed diagnosis of cancer.

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