Bereavement damages and why the law needs to change | Bolt Burdon Kemp Bereavement damages and why the law needs to change | Bolt Burdon Kemp

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Bereavement damages and why the law needs to change

A new draft Act of Parliament, known as the Negligence and Damages Bill, hopes to reform and update the current regime that allows limited relatives to bring legal claims when a loved one dies due to someone’s negligence. But what is the current system? Why is it wrong, and what are the proposed improvements?

The draft act hopes to reform many issues surrounding bereavement damages, and I will look at the issues relating to who can claim bereavement damages in this blog.

The current law

The way that the civil courts recognise and award compensation for someone’s grief following the wrongful death of a loved one is set out in the Fatal Accidents Act 1976.

The current rules allow for spouses or civil partners, the married parents of a child under 18, or the unmarried mother of a child under 18 to claim bereavement compensation for a wrongful death.

That’s it.

No one else is considered eligible to claim for grief, regardless of the significance of their relationship with the person who has died.

The law also means that the damages awarded (currently a paltry £12,980) for bereavement has to be effectively halved for parents of a deceased child, compared to a spouse. The act basically states that the grief of losing your child is half of that to losing your husband, wife or civil partner. For those parents who have had the tragedy of losing a child, this quite simply just does not ring true.

The law does allow in some cases for other people, such as the children of someone who has died, to claim for the loss of financial support and services, but these are cold and clinical financial calculations. It does not recognise the huge emotional impact that losing a close family member can and does obviously have on someone. Also, if there is not a financial relationship, then there is no claim at all.

Out of touch

The Fatal Accidents Act was prepared in the 1970s, and so reflects the societal attitudes and relationships around at the time. Marriages were at a high in the 1970s, with 404,734 marriages in 1971. The majority of couples living together were married, and couples cohabiting unmarried was not common, with 26.6% or people under 30 years old cohabiting before getting married up to 1979.

Fast forward into the last 10 years, and the statistics are massively different. There were 232,443 marriages in 2009. In 2007, 72.7% of couples under 30 were cohabiting before getting married. In 2012, there were 5.9 million people cohabiting unmarried in the UK; double the 1996 figure.

More people are now also having children before marriage, so recognised as “illegitimate” by the Fatal Accidents Act. In 2012, 47.5% of children were born to unmarried mothers, compared with just 11% in 1979.

Changes in social attitudes, increasing house prices and the reduction in growth of wages to inflation means that many couples either do not consider it necessary to get married before living together or having children, or simply cannot afford to get married, buy a house and have children all within a relatively short period in their lives. The structure of families has changed significantly, and the law needs to match the realities of this.

In addition to the increase in unmarried couples and children born to unmarried parents, the current system is simply too restrictive to recognise what many people would already consider significant personal relationships where grief is entirely to be expected.

Children are currently not allowed to claim for bereavement for losing a parent. A brother or sister cannot claim, and parents cannot claim for a child over 18 years old. Whether 1976, 2016, or 2076, no one can doubt the significant impact on these types of relatives of losing a loved one.

When clients approach me regarding the loss of a loved one through negligence, one of the hardest conversations I have to have with the family is explaining to children of a parent, brothers, sisters or parents of a child over 18, that they are unable to claim for bereavement. Many feel it is as if the courts and government are questioning the strength of their relationship with their loved one. Many also feel that it is allowing those who may have caused the death to effectively get away with the hurt they have caused. It feels like those in the wrong are being protected, at the expense of individuals struggling to come to terms with losing someone they loved.

The call for change

The law should always be in the context of society’s attitudes and the reality of the world we live in.

There is no reason that the system should not and cannot be updated, as there are plenty of other examples in law where changes have been made to reflect how the world works today.

Originally, the range of people who could claim for injunctions against partners who were violent towards them was limited. The Family Law Act 1996 only allowed married couples, cohabitees and a restricted few others to claim for injunctions to protect them from violent partners. Following public pressure and review, the law was changed in 2004 to allow injunctions against partners where the couple weren’t living together, but where “they have or have had an intimate personal relationship with each other which was of significant duration”. The rules about marriage have changed considerably over the years to reflect the change in relationships, with civil partnerships and same sex marriages. Criminal justice regularly updates to recognise new crimes and methods of committing crime.

Why then should the law regarding one of the most tragic episodes in a person’s life, the loss of a loved one, go unchanged for nearly 40 years?

It is an issue that the Law Commission tackled in 1999, and came to the unsurprising conclusion that the law simply needed to change. In a report to the Government in 2000, they recommended that the scope of people who could claim for bereavement damages be extended to recognise unmarried couples, children of parents who have died, parents for children over 18, brothers, sisters and other relatives. The strength of public support for change was significant, with 90% of people agreeing that children should be compensated for the wrongful death of a parent.

In particular, the report noted that the age restriction for a child’s death was nonsensical, as “death of one’s child is likely to be the source of profound grief in any circumstances,and that “children are likely to suffer grief and sorrow in the event of their parent’s death, and as such should be able to recover bereavement damages”.

A conclusion simply impossible to argue with.

After years of inaction and pressure, the government finally took up the recommendations of the Law Commission in the Draft Civil Law Reform Bill in 2009. Although only accepting a limited scope of the recommendations, the draft bill did recommend the extension of scope for those who could claim compensation for grief. It would have allowed for a person who had been living with the deceased as the deceased’s husband or wife or civil partner for a period of at least 2 years before the death, of a child of the deceased who was aged under 18 at the date of the death, and either parent of a deceased child, regardless of being married of unmarried. It would have been a strong step in the right direction to start to recognise the true scope of grief.

Unfortunately, the bill never came to pass. On 10th January 2011, the new coalition government announced that the Draft Civil Law Reform Bill was being scrapped because the government needed “to focus [their] resources on delivering [their] key priorities.” No further explanations, no apologies to the thousands of people affected, just a one sentence rejection in the face of overwhelming evidence for change. Within the same statement to the House of Commons, the attack on the Prince of Wales’ car during the London riots was discussed at length for several minutes. A concerning event yes, but more concerning than recognising the grief caused to thousands by wrongful deaths?

A New Hope?

Since then, the conversation has been quiet, until very recently. The newly proposed Negligence and Damages Bill, proposed by Andy McDonald MP on 13th October 2015, receives its second reading and first full review on 22nd April 2016.

In additional to married or civil partners, and parents of a deceased child under 18, the Bill recommends increasing the scope out to include some of the following:

  • Parents, single or married, of a child of any age;
  • Engaged to the deceased;
  • Siblings;
  • Grandparents;
  • Other immediate family, such as great grandparents; and
  • Aunts, uncles, cousins, nieces and nephews;

Although it’s unlikely that all of these relationships will be included in any final amendments, it finally resurrects the overdue argument for change, and the need for change. Even if the Bill doesn’t get implemented, it is important that the conversation has been re-started.

The evidence is there. The legislation is there. The public support is there. All it takes is some public pressure on the government, and for the government to make the changes and do the right thing for bereaved families and relatives.

No amount of damages can ever bring back a loved one, but when someone we love is wrongfully taken from us due to negligence, justice must be served and the grief we suffer must be acknowledged.

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