Road deaths highlight again the short comings of statutory bereavement damages

As drivers return to the roads in larger numbers and road traffic crashes inevitably increase as some drivers continue to ignore their own and others’ safety, we are reminded of the short comings of the UK’s bereavement damages system – writes Chris Bolton, serious and catastrophic injury specialist solicitor with Birchall Blackburn Law.

Young driver road traffic collision

The Association of Personal Injury Lawyers (APIL) has long campaigned for bereavement damages to be reformed. APIL highlight the fact that people who have lost a loved one face a ‘lottery’ based on which UK jurisdiction they are in.

The statutory fixed sum is only available to a very restricted and outdated list of relatives and it is capped at £15,120 for all claimants in England and Wales. This figure was only recently reviewed and adjusted in May of this year (2020). Until then it had been set at £12,980 since April 2013.

Meanwhile in Scotland, there is no fixed amount and the level of award is assessed by the Court on the facts of each case. Bereavement damages can be claimed by a wider category of people and sums of up to £140,000 have been made in Scotland.

In Northern Ireland bereavement damages increased from £14,200 to £15,100 from May of last year (2019) and is adjusted every three years in line with inflation.

Death caused by someone else’s negligence in a fatal car collision

The death of a loved one is devastating. Time and time again, we see what relatives go through when the death has been caused by someone else’s negligence in a fatal car collision. And whilst you can’t put a price on someone’s life and the circumstances of their death, the least you can do is be consistent. It seems unfair that bereavement damages in England and Wales is less than in other parts of the UK.

The tight restrictions on those eligible to claim statutory bereavement damages in England and Wales also means that many dependents will find themselves ignored. A child cannot claim bereavement damages even though they are likely to have been financially dependent on the parent. And a parent cannot claim this type of damages if their child was over 18 when they died. The loss of any child, whatever their age, is clearly heart-breaking with life changing consequences.

We would certainly welcome the reform of bereavement damages so that it provides a more consistent approach across the whole of UK and greater financial help for bereaved families going through the unthinkable.

Extend bereavement awards to cohabitants

It recently seemed the government might have had plans to review the system for awarding bereavement damages to relatives. The landmark case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust in 2017, saw the Court of Appeal extend bereavement awards to cohabitants where they had been in a relationship for at least two years.

APIL hoped that the government would respond to the Court of Appeal’s ruling with a consultation, but the Ministry of Justice said in February that there was no plan to review the current bereavement damages system.

The Ministry of Justice did indicate that England and Wales’ tariff would be reviewed to reflect inflation – which it was in May 2020 – and changes would be made to allow cohabitants to claim damages but beyond that there is little chance of any meaningful change.

With a vow to keep campaigning, APIL issued a statement to say: “An inflationary increase to statutory bereavement damages in England and Wales is not good enough. The Government has taken only the smallest of steps to improve the law in this area, and it simply is not enough.

“The Government must stop treating bereavement damages as a ‘token’. These damages are supposed to acknowledge that a life has been lost needlessly. The inflationary increase is still only a derisory sum, nor does it recognise that the impact of the loss of a loved one cannot be one size fits all.

“It is long overdue for England, Wales and Northern Ireland to adopt the Scottish system of assessing each claim on a case-by-case basis.”

What are statutory bereavement damages?

Statutory bereavement damages were put into law through the Fatal Accidents Act 1976, which also gave the Lord Chancellor the power to set the statutory sum. It is a personal injury compensation claim made following the unlawful death of a person due to the fault of another.

Under current law in England and Wales, statutory bereavement damages can be claimed by a dependent who is:

  • The husband, wife or civil partner of the deceased
  • The deceased child’s parents, but only where the deceased was under 18 and never married or had a civil partnership (and only the child’s mother if the deceased child was illegitimate)
  • The Government has this year presented a draft proposed Remedial Order to amend Section 1A of the Fatal Accidents Act to allow cohabitants to access statutory bereavement damages where they had been in a relationship for at least two years and living in the same household before the deceased’s death

These changes are welcome, but they do not go far enough to modernise the law relating to statutory bereavement damages. The narrow category of people entitled to claim does not represent society’s wider acknowledgement that families come in all shapes and sizes. For example, what about children and single fathers?

And no-one who meets and talks to the families trying to cope in the aftermath of a deadly traffic collision or crash could say that the current England and Wales level of bereavement damages is sufficient or represents any kind of justice.