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Assessment of bereavement damages in England & Wales – out of date and unfair!

Posted on 28th October 2015

Under the current system in England & Wales, the Fatal Accidents Act 1976 provides for a strict bereavement award of £12,980 awarded to certain individuals for the loss of a loved one as a result of a fatal accident. Additional damages can be awarded for losses incurred by the estate of the deceased, including funeral expenses, and to financially dependent family members.

There is a very narrow bracket of individuals who are entitled to claim the statutory bereavement award, i.e. parents of deceased children under the age of 18 and the deceased’s wife/husband/civil partner. The law does not recognise that this award should be made to the deceased’s children, unmarried partner, step-parents or parents of deceased children over the age of 18. In addition, where a deceased minor’s parents are unmarried, the law only allows for the mother of the child to claim the bereavement award and not the father of the child.

In Scotland, the system is very different. Scottish Courts have discretion to award a wider group of relatives of the deceased a “loss of society” award on a case-by-case basis, rather than applying a rigid award to a select few regardless of the closeness of the relationship. In June 2015 Scotland saw a record high loss of society award of £140,000, awarded to a widow who lost her husband as a result of his employer’s negligence.

Those opposing the record high award in Scotland, should be asked the humane question of whether this sum is anywhere near enough adequate in compensating an individual for the loss of a loved one. Scottish Courts are clearly identifying the need to deal with fatal accidents claims in a less rigorous fashion. This is undoubtedly a fairer approach which I would certainly welcome in England & Wales.

Andy MacDonald, Middlesbrough MP, is seeking to challenge the fairness of the current system in England & Wales by laying down a Private Members Bill to create greater flexibility for Courts in assessing damages in fatal accidents claims. Part of the Bill addresses the issue of the closed number of relations who can claim the bereavement award as well as those who can claim as secondary victims suffering a psychological injury following the death of a loved one.

The Association of Personal Injury Lawyers (APIL) is supportive of the Bill. Jonathan Wheeler, President of APIL, has commented that “People claiming compensation simply want to put their lives back on track. These events should never happen in the first place, but when they do happen they should be treated in fairness and understanding by the justice system.”

Mr Wheeler has previously written to The Times newspaper in support of two mothers who lost their daughters in road traffic collisions and were appalled by the statutory bereavement award provided for under the law of England & Wales. Mr Wheeler highlighted the unjust system in place by comparing the £12,980 bereavement award for the loss of a loved one with up to £25,000 which could be claimed for someone badly injuring their thumb. Mr Wheeler wrote in his letter that “it cannot be right that it is cheaper to kill people in England and Wales than it is to maim them.”

I consider that the law dealing with the assessment of bereavement damages in England & Wales is out of date, unjust and simply unfair and I welcome much needed reform in this area of law. At the time of writing, the Bill, entitled The Negligence and Damages Bill, is due to have its second reading in the House of Commons in December 2015.

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