High time for reform of bereavement damages

Historically, it was held that ‘in a civil court the death of a human being cannot be complained of as an injury’, (per Lord Parker in Commissioners v SS Amerika [1917] AC 39. This harsh stance has gradually been diluted by various Acts of Parliament since, albeit not completely.

The Fatal Accidents Act 1976 (FAA) was amended to introduce damages for bereavement. The intention of this award was to represent compensation for the grief and trauma suffered by surviving relatives. The Act was introduced at the recommendation of the Law Commission following its report in 1973; ‘Personal Injury Litigation – Assessment of Damages’. The purpose of the award was to;

• Compensate relatives for their mental suffering;

• Compensate relatives for non-financial benefits which they would have enjoyed but for the death;

• Provide practical assistance for the relatives;

• Serve as public recognition that the death was wrongful; and Punish the tortfeasor for the death it caused.

However, the problem with the current award is twofold; restrictive eligibility and low financial amount. One of the hardest conversations I have is explaining to close family members that they are unable to claim for bereavement. A claim for the bereavement award can only be made by a very restrictive category of people:

• The surviving wife, husband, or civil partner;

• Parents in respect of the death of an unmarried child under 18;and

• The mother of an illegitimate, unmarried child under 18.

No one else is considered eligible to claim for grief, irrelevant of the significance of their relationship with the deceased. Unmarried couples, children of parents who have died, parents of children over 18, brothers, sisters, fiancées, grandparents, and other relatives are all unable to claim moneys for bereavement at law.

Understandably, the view of ineligible family members is often that the tortfeasor is allowed to evade accountability for the grief they have caused mixed with a sense of injustice that the strength of their relationship with the deceased has not been appreciated.

Damages awarded for bereavement of a deceased child under 18 are effectively halved where there are two parents. Exploring comparisons between any fatality type is extremely sensitive and best avoided, but the current system distinguishes these categories in itself, by allocating a parent a half-award for the tragedy of a deceased child, against receiving a full award for the death of a spouse.

Having a cut off age limit for deceased children at 18 not only seems illogical but also raises dreadful threshold scenarios. This is most tragically demonstrated in Doleman v Deakin TLR 30/1/90 CA where the deceased child was a minor at the date of injury, but was over 18 at the date of death, and consequently it was held that there was no bereavement award payable.

‘Cheaper to kill than to maim’

Perhaps the second most challenging conversation fatal accident practitioners experience, is advising those eligible that the courts and government currently assess the loss of their close family member, wife, husband, son, daughter at a paltry £12,980.

No amount of money can ever bring back a loved one and no amount of money can ever truly compensate those suffering from the death of a close family member. It is perhaps behind this rhetoric that the government and courts are excusing their trivial assessment.

Under current guidelines, an injured person can receive up to £28,352 for a very serious injury to a thumb, more than double the bereavement award. Such a comparison beggars belief and is noted in Kemp & Kemp which commences its consideration of fatal accidents with the sad fact that ‘it is cheaper to kill than to maim’.

The law allows for additional dependency claims. These can be brought for loss of financial support and services and funeral expenses. But these are special damages claims for clinical, pecuniary loss. They do not include an award for the massive emotional impact caused when a loved one is negligently killed.

In stark contrast to the bereavement award, these pecuniary claims are open to a much greater range of affected person. The requirement for an award of this nature is that the person falls within the definition of a ‘dependant’ and has lost a ‘reasonable expectation’ of dependency. This includes spouses, former spouses, and even spouses where marriage occurs after the tortious act Phillips v Grampian [1989] SLT 538. Likewise this includes partners living together for two years (Kofte v Saffarini [2005] EWCA Civ 221), parents, and those treated as parents (foster or adoptive parents and parents in law). Children includes stepchildren, illegitimate children, the children of the surviving spouse, and even unborn children (Hyams v West (1987 unreported)).

Often, there is no financial relationship and so no pecuniary claim at all. The availability and extent of a claim for pecuniary loss as a result of a fatal accident should have no bearing on the eligibility and size of bereavement damages. They are distinct heads of loss, individually designed for very separate compensatory purposes.

The FAA was drawn up in the 1970s. The award has increased over the last 40 years but remains stubbornly low and with minimal increases.

Marriages peaked in the 1970s; 404,734 in 1971 when the majority of couples living together were married and unmarried couples living together was less common. Only 26.6 per cent of people under 30 years were living together before getting married in 1979.

In 2009 there were 232,443 marriages and 72.7 per cent of couples under 30 were living together before getting married. In 2012, it is estimated that there were 5.9 million people in UK living together unmarried.

Families and Households in the UK 2016, an ONS bulletin showed that cohabiting couple families have been the fastest growing family type between 1996 and 2016, more than doubling form 1.5 to 3.3 million families in that time.

Whether this is the result of increasing house prices, relative reduction in disposable income, or inflation, it is clear that times have changed. Marriage is no longer as popular as before.

The Scottish system is often cited as more progressive and perhaps points the way for reform in England and Wales. In Scotland, bereavement damages are governed by the Damages (Scotland) Act 1976. It allows the Scottish courts, whether by judge or jury, to determine bereavement awards on a case by case basis. It also permits a much wider group of possible recipients to claim.

By way of a handful of results in Scotland; in a 2004 case of loss of a husband (75) involved an award of £32,500, in a 2005 case loss of a husband (34) warranted an award of £48,500, and in a 2010 case the award to a parent for the loss of their child (21) was £90,000.

South of the border, it is clear that bereavement damages are both low and restrictive historically. They were introduced at a time of different social attitudes and relationships. The law should react to societal changes and current realities. The curiosity is why the award still remains so entrenched.

The story of reform is chequered, beset with intervening incidents. In 1999 the Law Commission produced the paper ‘Claims for Wrongful Death’ which recommended extending the category of claimants to parents of deceased children irrespective of legitimacy and long-term partners. It was suggested there be a qualifying period of two years cohabitation prior to death, mirroring that required to claim a special damages dependency award.

After further years of inaction and pressure, similar reforms were again suggested by the Law Commission in 2009. The recommendations became the Civil Law Reform Bill in 2009. But in 2011, the coalition government announced the bill was being scrapped as they needed ‘to focus resources on delivering key priorities’.

In 2015, Labour MP and personal injury solicitor Andy McDonald brought the Negligence and Damages Bill again proposing extended eligibility. The bill was due to have its second reading in the House of Lords on 13 May 2016 but was side-lined due to the EU Referendum.

Pressure continues to mount from noble campaign groups such as Families Against Corporate Killers (FACK) and the Association of Personal Injury Lawyers (APIL). APIL highlighted the need for reform on Workers Memorial Day 2017 with regional press releases sharing HSE figures highlighting the top local authorities for workplace fatalities; Selby was the highest with 5.45 deaths in every 100,000 workers.

Challenges also continue in the courts. Jacqueline Smith v The Secretary of State for Justice [2016] EWHC 2208 (QB) sought to attack the current law as a violation of articles 8 and 14 of her human rights. Her application was dismissed, but the High Court accepted that society had changed and there was need for reform. The judgement concluded: ‘The outcome of this litigation may provoke further discussion in parliament for further legislation which might improve the current state of the law.’

Sadly, I cannot see reform being high on the agenda of any new government. Health and safety has rarely featured as a top priority for Conservative governments. Likewise, the instability from the recent general election and forthcoming departure from Europe are likely to serve as further obstacles. But these uncertain political times should be no excuse to relent on the campaign for reform of the bereavement award. Remember the dead, fight for the living.

Ross Whalley is a solicitor at Leigh Day

@LeighDay_Law www.leighday.co.uk