The thorny issue of bereavement damages in fatal accident cases has recently raised its head again on one of my cases, writes associate solicitor Lauren Haas. Since so few of the families I encounter are aware of bereavement damages it may be useful to summarise the current law in this area and set out what the potential issues are.
What are bereavement damages?
Bereavement damages are a fixed sum of money which can be claimed on the unlawful death of a loved one.
They are separate from any financial dependency claim, which can of course also be brought.
Unlike a lot of other jurisdictions in Europe and the world, within the English jurisdiction we are very restrictive in our approach to bereavement damages.
Who can claim?
The current legal position allows you to claim the bereavement award if you are:
- The spouse or civil partner of the deceased; or if no such eligible claimants exist, then
- In cases involving the death of a child under 18, the parents if the child was “legitimate”, or the mother if the child was “illegitimate” ie mother and father were not married.
The question of who can actually claim this award has caused some controversy and outrage in recent years.
In 2017, a case in the Court of Appeal (Smith v Lancashire Teaching Hospitals NHS Foundation Trust) resulted in the Court of Appeal dragging the rather outmoded position on eligible claimants into a 21st century setting by ruling that cohabitants who have lived together for two years or more (for at least two years immediately prior to death) can claim for bereavement damages.
However – beware! As is the case for parents, where both an eligible cohabitant and spouse are eligible to claim bereavement damages then the award is divided equally between them.
Who cannot claim for bereavement damages?
Despite the fact that some cohabitants are now entitled to bereavement damages, the list of people entitled to a bereavement award remains very restricted.
The following individuals are not entitled to a bereavement award:
- Cohabitants of less than 2 years
- Parents of an adult child who is over the age of 18
- The unmarried father of a child under the age of 18
- Children who have lost a parent (regardless of the child’s age)
- Siblings
- Grandparents.
How much can be claimed for bereavement damages?
Following a consultation by the Government in reaction to the Smith v Lancashire case mentioned above, the award for bereavement in fatal accident claims was increased from £12,980 to £15,120 in March 2020 (after seven years of no increase at all).
The new award level applies to deaths on or after 1 May 2020.
However, the Ministry of Justice’s reiterated view is that bereavement damages are token in nature and have intentionally been limited in scope to a very restricted pool of individuals.
Commentary
“What price is a loved one’s life?” is probably one of the most emotive issues lawyers deal with in fatal accident cases.
The answer is of course that no money can ever compensate for the death of a beloved family member, but it adds to the hurt of families already dealing with a loved one’s death to find out what level of bereavement damages are actually set at and how restrictive in scope they are.
As a serious injury lawyer, it has been my experience that this restrictive approach can cause real heartache and anger at a time when families are in an exceptionally emotive state of mind anyway.
Careful and early management of the expectations of the families involved in fatal accident cases in respect of bereavement damages is therefore key.
A multitude of legal commentators have sought to emphasise the inequality and unfairness of the current legal position.
The Association of Personal Injury Lawyers (APIL) carried out consumer research in 2013, in which more than half of the 2,000 people surveyed thought bereavement damages should be more than £100,000, while three-quarters of people wanted the levels set on a case-by-case basis.
In addition, the current legal position does not reflect modern society’s view of and the proliferation of so-called “illegitimate” children ie children not born to a married couple.
It is a fact of life that (depending on the studies one consults) around 30-50% of babies are born out of wedlock.
That means a lot of fathers will fall outside of the scope of bereavement damage.
Children are prevented from claiming bereavement damages for parents in any case, which has caused many an expression of outrage when explaining the law to families.
As a comparison, in Spain or Greece you would likely be able to claim damages of around €80,000-100,000 for a bereavement which is caused by an unlawful act.
In Scotland, every case is looked at on its own merits and this has resulted in awards solely for bereavement damages reaching up to £140,000.
Unfortunately, a policy change by the Government is highly unlikely at the present time.
Lauren Haas is an associate solicitor specialising in serious injury and fatality cases at Irwin Mitchell.
