Fatal accident claims; it is time to change the bereavement award

July 18, 2014
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Tragically there are a number of people who lose loved ones as a result of someone else’s negligence. Coping with the loss of a loved one is always very difficult. However, if that death was avoidable, it makes it all the more upsetting.

Road traffic accidents make up a large number of fatalities with 1,713 fatalities on Britain’s roads in 2013. The majority of people killed in accidents are the result of car accidents 46%. The number of fatalities as a result of accidents at work is much lower with a reported 133 deaths recorded by the Health and Safety Executive in 2013 to 2014. This is still a significant number.

In the event that a loved one is killed as a result of someone else’s negligence, then you may be entitled to claim the bereavement award. However, the current criteria for claiming bereavement in England and Wales, and  the award given, is very restrictive and is in desperate need of change. This is particularly evident when comparing our system to that of the Scottish system making it a geographical lottery.

The Bereavement Award in England and Wales

The law setting out the criteria for claiming the bereavement award is contained in the Fatal Accidents Act 1976. The amount awarded is set by statute and is currently £12,890. Many would agree that this is very low and it seems unfair to place a blanket value on all bereavement claims. Each individual deals with the death of a loved one differently so therefore each case should be assessed individually by a judge and the appropriate award given. As a personal injury solicitor, it is heartbreaking to tell somebody who feels that their life has been destroyed following the loss of a loved one, that the value of that person’s life is only £12,890.

The low figure set by statute is not the only issue with the bereavement award. The criteria for who can claim the award is also very restricted and unfair. In England and Wales, the only people entitled to claim these damages are a spouse, civil partner, both parents of a legitimate child under the age of 18 or the mother of an illegitimate child under the age of 18.

Notably under this criteria, children cannot claim for the death of their parents. It also excludes siblings and grandparents and even parents whose child was over 18 years old. Many would agree that to any parent, their son or daughter will always be considered their child whether they be 5 years old or 30 years old and the loss is no different. It seems wholly unfair that parents who lose a child who is a day over their 18th birthday cease to be entitled to claim. Matthew Stockwell, who was last year’s president of the Association of Personal Injury Lawyers (APIL) commented:

 “It is particularly distasteful to me that parents of a child under the age of 18 should be entitled to bereavement damages but, once the child is 18, they are not. It is unnatural for a parent to suffer the loss of a child, and that loss is no less if the child happens to be over the age of 18.”

It also seems very unfair that the mother of an illegitimate child can claim yet a father cannot. This seems to be making the assumption that the father must not have an active role in his child’s life simply because he is not married to the child’s mother. Not only is this a very unfair assumption to make but is also discriminatory. Why should a mother be able to claim and not a father? This is not at all in keeping with today’s society where many couples chose not to marry and where we promote equality between the sexes. Apart from minor incremental increases to the level of the award and the inclusion of civil partners, the legislation has remained the same since it came into force 38 years ago and is evidently in desperate need of change.

With the restriction on who can claim the award and the amount that can be claimed, it is sometimes the case that it is cheaper to kill someone than seriously injure them. This morally doesn’t sit well with me as I can imagine it doesn’t for many.

The Bereavement Award in Scotland

In Scotland the “immediate family” may claim compensation which includes spouses, co-habitees, parents, children, siblings, grandparents and grandchildren. Also there is no limit on the damages which can be claimed. Instead, a judge considers the matter on a case by case basis and takes into account individual circumstances before reaching a decision on bereavement damages. There is no statutory limit and in practice the awards in Scotland are often much higher than the £12,890 available in England and Wales. This comparison illuminates Scotland’s much more generous approach.

Campaign

The Association of Personal Injury Lawyers (APIL) is currently campaigning for a change in the law to the bereavement award in England and Wales. The APIL campaign is suggesting an approach akin to the Scottish system. A survey commissioned by APIL found that 80% viewed the Scottish system for bereavement damages as being fairer http://www.apil.org.uk/files/campaigns/bereavement-damages-research-report-2013.pdf.

Last year’s president of APIL, Matthew Stockwell, commented “For years we have been calling for the law to be changed in this area, and this new survey has shown just how far out of step with public opinion the system for awarding bereavement damages really is.”

“Everyone knows, of course, that nothing can ever replace a loved one who has died, but it’s important to remember that we are talking here about bereavement caused by the negligence of another party. The fact that the death is needless can only increase the sense of pain and loss. In Scotland, cases are taken on their merits, damages are generally higher, and the law is much more flexible about who can receive them.”

The vast majority of those surveyed believed the fixed sum in England and Wales is not high enough, and 57% felt a figure of more than £100,000 would be appropriate. Many respondents also suggested the list of people who should be eligible to receive bereavement damages should be extended to include, for example, the parents of a child who is killed, regardless of the child’s age; children (including adopted children) of the person killed, regardless of the child’s age; the co-habitee of the person killed, and the fiancé of the person killed. None of these people are currently eligible for bereavement damages in England and Wales, while most of them are entitled to claim damages in Scotland.

I fully support APIL’s campaign, and from the results of their survey, it is evident that the public are also supportive. The current system is unfair, discriminatory and unjust causing further distress to the relatives of loved ones who are already going through a very upsetting period in their lives. It is time for change!

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