One topic that is guaranteed to cause angst amongst our lawyers is the unfairness of the law relating to bereavement damages. Not just the derisory amount that is payable following a death, but also who is eligible for the payment.
In this article, solicitor and director, Sara Westwood explains the law and why she doesn’t think it goes far enough in compensating someone for the death of a loved one.
We deal with many harrowing and complex cases arising from accidents and medical negligence, and despite the number of years I have been doing this job I am still embarrassed when explaining to the loved ones of a person who has died, just how little the law says they are entitled to for bereavement damages. In some situations, I must tell loved ones that they are not entitled to anything because they do not fall into the very limited category of people entitled to make a claim for bereavement damages.
Under The Fatal Accidents Act  bereavement damages are payable where the death was caused as a result of negligence.
How much is bereavement damages?
The award for bereavement in fatal accident claims increased for cases involving deaths that occurred on or after 1 May 2020, from £12,980 to £15,120.
This increase brought England and Wales in line with Northern Ireland where the amount was increased to £15,100 in May 2019. In Scotland, however, bereavement damages are decided by the courts on a case-by-case basis.
Whilst no amount of money can ever possibly replace a loved one, I am saddened by the derisory amount which has been described as “humiliating” by one Claimant who lost her husband. I am also disappointed by the insensitive language the Government used during their recent review of bereavement damages which they describe as “only ever intended to be a token payment payable to a limited group of people”.
The Scottish approach to calculating compensation follows similar principles to those applied in personal injury and clinical negligence claims in that they are related to the ‘pain and suffering’ endured by the loved one. It considers the individual circumstances of those involved considers factors such as:
Who is entitled to claim bereavement damages?
The eligibility criteria for bereavement damages is extremely narrow, covering only the following people:
The Fatal Accidents Act 1976 (Remedial) Order 2020 is the legislation which applies the increase (the increase only reflecting inflation since the previous increase in 2013) however it will also add a cohabitee of more than 2 years duration to the limited list above, the addition of which only arose following the decision in a landmark legal case (discussed below). The law in Scotland has no difficulty in recognising the closeness between parents, children of all ages, grandparents, siblings and other people living with the deceased as part of the family. Why is it successive Governments in England refuse to recognise other family members in the same way?
Smith v Lancashire Teaching Hospitals NHS Foundation Trust, 2017
The case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust  has been the catalyst to the small changes to the Fatal Accident Act. This Court of Appeal case held that bereavement awards should be extended to cohabitants where they had been in a relationship for at least two years.
The case concerned Jakki Smith who had cohabitated with her partner John Bulloch for 16 years prior to his death, his death of which was due to clinical negligence. Ms Smith pursued the government for a bereavement damages award under Human Rights legalisation arguing that the government had breached her human rights in denying her bereavement damages. She was forced to use human rights legislation because she did not meet the very narrow criteria as defined under the Fatal Accidents Act.
She won her case when judges held that the exclusion of unmarried cohabiting partners was found to be incompatible with the European Convention on Human Rights.
Despite pressure from APIL to allow all cohabiting partners to claim the award, the Remedial Order limits the scope of the extension of the range of eligible Claimants to unmarried partners of the Deceased with whom the Deceased was cohabiting for at least two years immediately prior to death. As in the case for parents, where both a qualifying cohabitant and spouse are eligible to claim the award is divided equally between them.