Changing the law on bereavement damages

Bilal Hussain reflects on alternatives to laws in England and Wales, in comparison to Scotland and other European jurisdictions

This article reviews the law on bereavement damages in England and Wales in comparison with Scotland and other European countries, on two succinct points:

1)     The persons entitled to make a claim for bereavement damages.

2)     The amount of bereavement damages awarded.

Bereavement damages in England and Wales

Bereavement damages are a form of compensation which is payable to certain limited categories of relatives following the unlawful death of a loved one, arising from a fatal accident, wrongful act and/or neglect. The award itself arises from the Fatal Accidents Act 1976, which has seen a number of changes on the amount of the award and to whom this is payable to (described as “dependants” in the Fatal Accidents Act 1976).

Who is a dependant?  

At present, the husband, wife, or civil partner of the deceased can obtain the bereavement award. In addition, the parents of a deceased child can, in certain circumstances, claim. If the child was illegitimate (born out of wedlock), only the mother can claim.

In 2017, the Court of Appeal in a case called Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916 found that unmarried cohabiting partners were incompatible with the European Convention on Human Rights (ECHR). This prompted a change in the law. The Fatal Accidents Act 1976 (Remedial) Order 2020, was introduced to include this cohort.

The current law (in England and Wales) only identifies the following relatives who may claim for a bereavement award:

·        only the spouse or civil partner of the deceased.

·        a civil partner who was living with the deceased for at least two years (a cohabitee).

·        the parents of a deceased child (under 18 years), and was never married or in a civil relationship (or, if the child is ‘illegitimate’, the mother only).

In contrast, in Scotland, spouses, children, grandparents and grandchildren are all entitled to claim for bereavement damages.

How much is the award?

In May 2020, the Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020, increased the bereavement award for all deaths following 1 May 2020, from a fixed award of £12,980 to £15,120. The recent increase in award is a step in the right direction but many consider the award should not be limited but rather assessed on a case by case basis as seen in Scotland, where similar awards have been paid as high as £90,000, six times the fixed amount in England and Wales.

In essence, the act places a fixed value of losing a loved one at £15,120, for all dependants. The law in England and Wales is over 40 years old and remains inconsistent with the approach taken by other countries. In the USA, similar awards to compensate family members when a loved one dies as a consequence of the fault of another can run into very substantial seven figure sums. Some may consider compensatory awards in the USA are an unrealistic and extreme example but how does England and Wales compare with its fellow European countries.

Differences across Europe

In European countries such as France, the eligibility to be compensated for a loved one, is far wider than our comparatively restricted law. The law on the payment of bereavement damages in other European countries is much more generous, that is both in terms of the award itself and the number of people who can claim. For example, France, Space and Italy all adopt a much more flexible approach by assessing a separate award on a case by case basis across a much wider category of relatives, who are eligible to make a claim. In France, there is no restriction on who can claim as long as that person can show a very close, familial type relationship with the deceased. My colleagues in the International Serious Injury team at Irwin Mitchell LLP, have provided examples of recent fatal accident claims across Europe where they have recovered an award for bereavement damages.

In France, the bereavement damages (referred to as a ‘moral award’) was paid to 15 relatives including: £33,000 for a widow, £30,000 for the dependent child, £20,000 for a parent, down to just over £2,000 for a particularly close cousin. In total over £200,000 was recovered as part of bereavement damages.

In Spain, bereavement damages are paid into categories depending on the relationship with the deceased. For spouses, there is a tariff for bereavement damages, which means the amount of bereavement damages payable will depend on how long a spouse was married to the deceased. The longer the duration of marriage, the higher the award. In a recent case, a widow in Spain was awarded £120,000 along a separate award to the deceased brother in sum of £20,000.

A recent case in Italy, involving a deceased woman aged 59 years who was married but without children was survived by her elderly mother, husband (retired) and three adult sisters included a bereavement award of:

·        Mother: £180,000

·        3 x Sisters: £40,000 each

·        Husband: £200,000

Another case in Italy, included bereavement damages for an adult son from the deceased first marriage (£50,000), daughter in law (£25,000) and two grandchildren who each received £25,000.

Campaign for reforms

At an Association of Personal Injury Lawyers (APIL) Parliamentary event held in November 2022, MPs were asked to raise a debate for urgent reforms on the payment of bereavement damages. The event was hosted by Labour MP Lilian Greenwood and attended by MPs across all political parties. This has certainly brought much more awareness to these much needed reforms.

There are many people who are left shocked after learning about the law on bereavement damages for the first time. As a specialist solicitor in serious injury and fatal accidents, I am often required to advise close relatives of a deceased who is unlawfully killed, that the law in England and Wales either doesn’t acknowledge them in a category of persons entitled to compensation or that the award itself is far less in comparison to other countries in Europe and Scotland.

The Fatal Accidents Act 1976 in England and Wales, in my view remains outdated, inconsistent and discriminatory. If there were proposals for a reform on the law of bereavement damages in England and Wales, I would certainly encourage our law makers to reflect on how this area of law is implemented across our neighbouring countries and Europe. That is, to adopt a much more flexible approach by introducing an assessment of damages on a case by case basis across a much wider category of relatives, who are eligible to make a claim.