6 July 2021 | Comment | Article by Laura Bailey

Bereavement Damages award – Compensation after the death of a loved one

Bereavement damages were introduced into UK legislation by way of the Fatal Accidents Act 1976. The idea behind this was that an award should be made to reflect the grief and trauma suffered when a person has died through the fault or the negligence of another party. 

Fatal accidents can occur in a variety of situations following unexpected or unforeseen events, such as road traffic collisions, accidents at work, or from substandard medical care. If the death was caused by the negligence of another party, then the deceased’s dependents may be able to claim compensation, and an element of that compensation can be made up of a bereavement damages award.

Under the Fatal Accidents Act, if a person has died as a result of negligence, then a statutory bereavement award which is currently set at £15,120.00 is payable to:

  1. The wife, husband, or civil partner of the Deceased; or
  2. The parents of the Deceased, if the Deceased was under the age of 18 and never married; or
  3. The mother of the Deceased, if the Deceased was considered an illegitimate child.

The provision for a bereavement award, is similar in England, Wales and Northern Ireland, but very different in Scotland.  In Scotland, claims for compensation for bereavement are considered on a case-by-case basis, with personal circumstances and relationships taken into consideration.

APIL President, Sam Elsbury states: “This is how it should be, but it is not how bereaved people are treated in England, Wales or Northern Ireland. Instead, bereaved people in those jurisdictions are dealt with in a way which is rigid, discriminatory, and woefully out of date. The time for the law in England, Wales and Northern Ireland to be brought into the 21st century is long overdue. The law in Scotland has no difficulty recognising the closeness between parents, children of all ages, grandparents, siblings and other people who lived with the deceased as part of the family. In the rest of the UK it’s as if many such relationships are not important, or do not even exist”. 

APIL have deemed the system in the UK to be a postcode lottery, and have been campaigning for change, to bring our system in line with that of Scotland.  In response to this campaign, the Ministry of Justice said that “bereavement damages are and were only ever intended to be a token payment…” and that the current law is not intended to suggest that those ineligible for bereavement damages “would not grieve at the death in question”.  In response to this APIL state that “this may be the intention of the Ministry of Justice, but for a bereaved person to be told their relationship with the deceased is not even worth a “token payment” will be hurtful and distressing. The current law fails these bereaved families”.

Currently, if you are in an unmarried couple in England, Wales or Northern Ireland, and have lived together for less than 2 years, despite the fact that you may have children together, you will be deemed ineligible for a bereavement damages award.  The same will be the case for parents whose child is over the age of 18, despite the potential closeness of their relationship.  The law in Scotland recognises that a parent’s love for a child does not diminish just because the child is over the age of 18. The law also recognises, for example, the part a grandparent can play in the life of a grandchild, and the closeness of siblings.

APIL use the case study of Peter McGee, who died in hospital after falling down the stairs in his Glasgow home. During the subsequent court case it was found that his fall happened because the handrail on the stairs had been fitted “in a wholly inadequate manner”. After Mr McGee’s death, a judge in Edinburgh acknowledged the part he played in the lives of his family. Compensation was provided to Mr McGee’s widow, his two daughters, his son, and his four grandchildren. The judge set the amounts at levels which he thought best reflected the closeness of their respective relationships with Mr McGee. In particular, the judge recognised that, following the breakup of her parents’ marriage, Mr McGee was the “principal male adult” in his granddaughter’s life. She was awarded £20,000. The judge also recognised that Mr McGee looked after his grandson when his daughter was at work, providing him with encouragement, taking him to and from school, to church, and on excursions. His grandson was awarded £25,000. If Mr McGee had died in England, Wales, or Northern Ireland, his children and grandchildren would not have received any compensation for their grief and trauma.

There is a huge disparity within our legal systems in regard to this award.  All lawyers who deal with fatal accidents will understand that whatever award you are able to achieve for your client, as the result of a fatal accident, it never feels satisfactory as you are not able to bring back the person that has died.  Losing a loved one is the worst thing that can happen to someone, particularly if that death could have been avoided.  No one wants to imagine a loved one leaving home and never coming back, but this is the reality that so many people face.  It would seem fair that they are, at least, properly compensated insofar as they can be, for that loss. 


Author bio

Laura Bailey is an Associate Solicitor the Hugh James Neurolaw team and the APIL Wales Secretary. She has a wealth of experience in representing claimant’s who have suffered catastrophic injuries and also represents families in the aftermath of a fatal accident.

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Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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