Why Are Fatal Accident Compensation Rules So "Antiquated And Offensive"?10th May 2023
How much is a human life worth? It is priceless to the person concerned and to the loved ones they leave behind.
But the law does not reflect this. Only a limited category of relatives can claim Bereavement Damages.
And that payout is set at £15,120 – no matter what the circumstances and the grief suffered by family members.
The Association of Personal Injury Lawyers (APIL) is calling for a change to the law in England and Wales – greater compensation for the loved ones of victims who died due to negligence.
APIL: “We Are Determined To Increase Pressure On the Government.”
APIL Chief Executive Mike Benner said: “Reform of our antiquated and, frankly, offensive law on bereavement damages in England and Wales is a key campaign for APIL.
“We are determined to increase pressure on the government about this by securing serious parliamentary debate on the issue.
“We know from our own conversations with MPs that they are often unaware of the fact that statutory bereavement damages are available only for a very limited number of grieving relatives, and that the statutory sum they are given is very low,” he added.
APIL’s April 2021 report Bereavement Damages: A Dis-United Kingdom highlighted the inconsistencies across the UK: it is a postcode lottery.
In Scotland there is no limit on the Bereavement Damages that can be awarded. Compensation is assessed on a case-by-case basis, depending on the level of pain and suffering experienced by the loved ones.
This has resulted in much higher and fairer levels of damages being awarded to reflect the grief suffered.
APIL is campaigning for the government to change the law in England and Wales to bring it in line with that of Scotland.
This campaign for much-needed reform is of great significance to our lawyers in the Personal Injury and Clinical Negligence Departments. It is an issue that we feel very strongly about.
History of the Law: Fatal Accidents Act 1976
The law on Bereavement Damages is set out in the Fatal Accidents Act 1976. It entitles you to claim the bereavement award if you are the:
- wife, husband or civil partner of the deceased
- partner of the deceased (cohabiting for two or more years)
- parents, where the deceased is a minor born within marriage
- mother, where the deceased is born outside marriage.
Long-term cohabitees have been eligible for the award only after the Court of Appeal case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others  EWCA Civ 1916.
The Court of Appeal ruled it was against the European Convention on Human Rights to exclude unmarried couples from claiming the award.
It has therefore been recognised that the current legislation is out of date – and it is hoped that this will lead to further reforms going forward.
Who Is Excluded From Receiving Bereavement Damages?
The narrow scope of the current rules prevents many close family members from receiving Bereavement Damages. Those excluded include a:
- child who loses a parent
- parent who loses a child over 18 years of age
- father of a child born outside marriage
- grandparent who loses a grandchild
- grandchild who loses a grandparent.
Examples Of Why The Current Bereavement Damages Law Is Unfair
Everything that you’ve read so far should leave you in no doubt that the law as it currently stands is unfair, out of date and insulting to grieving relatives.
In practice, personal injury and clinical negligence solicitors often face the very difficult task of explaining to clients that their loved one was killed due to the fault of a third party (perhaps in a road or workplace accident or through a clinical error) – but that the current law in England and Wales limits who can claim and how much they will receive.
This means that often a death due to negligence is proven but that nobody is eligible to claim the legal bereavement award.
It is wholly unfair and out of touch with the modern world that certain close family members cannot claim the damages.
A prime example is how fathers of ‘illegitimate’ children aged under 18 are excluded.
In today’s world many couples decide not to marry – and this is their right to do so. They should not be penalised for this life choice.
Parents of children who are over the age of 18 are not eligible to claim, which seems unethical. The grief of a parent is surely not any less significant because their child is legally an adult.
Similarly, the loss of a parent, grandchild, grandparent or sibling can be devastating.
In Scotland, the category of loved ones who can claim the award is already wider; it includes siblings and children. This reflects how the law is not currently consistent across the UK. Furthermore, the damages in Northern Ireland are higher than they are in England and Wales.
Such Low, Arbitrary Compensation Is Unjust
Even if a family member is eligible, we then have the uncomfortable task of explaining that the law of England and Wales currently deems the loss of their loved one to be worth just £15,120 – regardless of the level and intensity of their pain and suffering. And before 1 May 2020, the sum was just £12,980.
This is far less than the likely value of a claim by a victim who survived but was left injured for life.
While the aim is not to impose punitive damages, it seems unjust for an arbitrary fixed sum to be imposed to compensate loved ones, regardless of the circumstances and degree of suffering.
This does not seem to offer any real justice and closure for many relatives who often feel that the defendant has not been held sufficiently culpable for their actions.
This is contrary to the law in Scotland where damages for bereavement are assessed and awarded on a case-by-case basis.
The Scottish model offers fairness: it gives relatives a chance to plead their case in terms of the level of pain and suffering – before a damages award is made.
Limited Access To Justice
Often, based on the current law in England and Wales, the valuation of personal injury claims involving fatality is low. In practice, this can also limit access to justice.
No Win, No Fee solicitors can take on cases and recoup their legal costs only if the damages for pain and suffering recovered exceed £1,000. The legal fees and expenses must be proportionate to the value of the claim.
If no loved one is eligible to claim Bereavement Damages – and the deceased did not leave any friends or family members that were dependent on them – the claim may be limited to:
- damages for the deceased’s pain and suffering prior to death
- funeral expenses on behalf of the estate.
If the victim died very quickly, for example in a car accident or on the operating table, then the value of this element of the claim can be very low.
After legal fees and after-the-event insurance cover (in the event of an unsuccessful claim) are deducted from the damage, this may leave little for the loved one of the deceased – even if legal fees are waived.
In practice, this may result in No Win, No Fee solicitors being unable to take on an important case because damages for the family would be so minimal and the predicted legal costs may be disproportionate and unrecoverable.
This is often the case when elderly patients die suddenly (or after a short illness) due to negligence.
More claimants may be able to access justice if the:
- category of loved ones who can claim Bereavement Damages is broadened
- valuation of each case is assessed on an individual basis.
Legal Reform Is Urgently Needed
Our personal injury and medical negligence lawyers support APIL’s campaign to bring Bereavement Damages in England and Wales into line with the fairer awards that apply in Scotland.
We appreciate that there is a ‘floodgates’ argument, that a change in the law may result in more claimants and higher damages.
However, our legal team believes that these arguments must be weighed in favour of access to fair awards and justice for bereaved relatives across the UK.
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Get Expert Legal Advice On Personal Injury And Medical Negligence Claims
For more information, contact Coles Miller medical negligence Partner Lydia Barnett. She is based at our Fleetsbridge office.