Bereavement damages: The ongoing campaign for reform of the law on compensation

In April 2021, the Association for Personal Injury Lawyers published a report on the inconsistent approach to bereavement damages across the UK. In this article, Lyn Lester, Senior Litigation Executive, looks at the current criteria for an award of damages, changes over recent years and why further reform is needed to ensure fair compensation for bereaved families.

A history of bereavement damages

For many years, the law in relation to bereavement damages has been outdated and in urgent need of reform to reflect today’s modern society and to ensure a level playing field across the UK.

Under the Fatal Accidents Act 1976, a statutory bereavement award is a type of personal injury compensation which is payable to certain relatives in the event of a fatal accident, caused by the negligence or breach of duty of another.

In May 2020, the Damages for Bereavement (Variation of Sum)(England and Wales) Order 2020 increased the statutory bereavement award payable in England and Wales for a fatal death occurring on or after 1 May 2020, from £12,980 to £15,120, the first increase since April 2013.

However, the law in England and Wales provided that statutory bereavement damages could only be claimed by:-

• The husband, wife or civil partner of the deceased
• The parents of a deceased child, where the deceased was under the age of 18 at the date of their death and was never married or in a civil partnership (this is further limited to only the child’s mother being able to claim if the deceased child was illegitimate)

The Court of Appeal case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and the Secretary of State for Justice (2017) found that excluding unmarried cohabiting partners from claiming the statutory bereavement award was incompatible with the European Convention on Human Rights and prompted a change in the law.

The Association for Personal Injury Lawyers (APIL) pressed the Government for change to enable all cohabitees to be eligible to claim the statutory bereavement award. Despite their continued efforts, Government reforms came into force on 6 October 2020 under the Fatal Accidents Act 1976 (Remedial) Order 2020.  This extended the scope of eligible claimants only to unmarried cohabitees who were living in the same household as the deceased immediately before the date of death and had lived together for at least 2 years before the date of death.

Current inconsistencies in the award of bereavement damages

Whilst these reforms are an improvement, they simply do not go far enough. Many relatives are still unable to claim the award following the loss of their loved one.  For example, a child cannot claim for the death of a parent, a parent cannot claim for the death of a child if they were over the age of 18 when they died and a cohabitee cannot claim if they have lived together less than 2 years. Many of our clients have been affected by these laws. This includes many grieving children of terminal asbestos related diseases like mesothelioma and lung cancer.

There also remains disparity in the law relating to bereavement damages across the UK. In particular, the situation in Scotland is much more compassionate. In Scotland, there is a much wider category of those who are eligible to claim bereavement damages. These are not a fixed sum but are assessed on the individual facts of each case. This often results in substantially higher awards than the fixed sums payable in the rest of the UK.

The unfairness of this situation was underlined by the recent case of Haggerty-Garton & five others v Imperial Chemical Industries Ltd (2021). This case was heard before the English Courts, as the deceased lived in England. However, his asbestos exposure had occurred in Scotland, so Scots law applied.  The Judge awarded £115,000 to the deceased’s widow and between £35,000 and £40,000 to each of her three sons by way of general damages for loss of society.

This category of damages, which does not apply in English law, allows for a general damages award to be made to close relatives who can establish a sufficiently close relationship with the deceased. This allows for distress and anxiety endured in the contemplation of the deceased’s suffering and grief and sorrow caused by the deceased’s death. It also allows for the loss of the non-pecuniary benefit they may have derived from the deceased’s society and guidance.

Five further relatives, being two daughters from his previous marriage, two sisters and a granddaughter also made a claim under this category of damages and settled their claims pre-trial. If this claim had been decided under English Law, no general damages award for loss of society would have been made. Instead, a statutory bereavement award of £12,980 would have been payable to the widow only.

APIL’s campaign to improve bereavement damages

APIL have continued to campaign for the rights of victims. In April 2021, they launched a bereavement damages report entitled ‘Bereavement Damages: A Dis-United Kingdom’, which sets out the postcode lottery in respect of the law across the UK and shares stories from some of those who have been affected by these laws.  APIL continue to campaign for the law in England, Wales and Northern Ireland to be changed to reflect the law in Scotland and have set up a webpage dedicated to this campaign.

In July 2021, despite APIL’s ongoing campaign, the Justice Minster advised that the Government did not currently have any plans for wider consultation on the bereavement damages regime. The Shadow Justice Minister has criticised the Government’s response as “a failure of victims and loved ones left behind during an incredibly distressing time.”

Brachers continues to support APIL’s campaign for law reform to enable bereaved families across the UK to be fairly compensated following the loss of a loved one. If you would like further guidance on any of the issues covered in this article, please get in touch with our Personal Injury team today.

This content is correct at time of publication