Bereavement Damages - Scots Law used as Benchmark for reform

The Radio 4 consumer programme “You and Yours”, for 14 January 2016 (yes, more than 10 years ago), included a section on bereavement damages.

It highlighted the fact that, although they say “you can’t put a price on a life”, in fact, we do it all the time.

Decisions made about which treatments and drugs are going to be available on the NHS are one example.

Another is the way we deal with compensation when someone dies as a result of negligence.

NOTE: This article is an updated version of one which was originally published on this website on 25 January 2016. At that time, there seemed a real prospect that the law on fatal claims in England and Wales would be amended and brought into line with Scots law’s ‘more favourable’ approach to bereavement damages. Shockingly, however, that has still not happened, despite more than a further decade having gone by.

Two people walking on the East Beach at Lossiemouth, Moray

Scotland as a benchmark for law reform in England and Wales.

As at January 2016, one MP – a former personal injury lawyer – was asking for a change in the law to allow courts in England and Wales to pay more in compensation than up to that point and allow a wider range of relatives to claim, when someone has died as a result of negligence.

In many ways, the Scottish legal position was being used as the blueprint for the proposed change in the law in England and Wales and (sadly) it is still having to be so used.

Andy McDonald was the Labour MP for Middlesborough and his Private Member’s Bill was due to come before Parliament at the end of January 2016. (Unfortunately, it does not appear that the Bill ever got beyond its First Reading in the House of Commons on 15 October 2015).

Talking about the changes he wished to see made to the law on bereavement damages, he explained that his proposed legislation for England and Wales would cover deaths from personal injury caused by the negligence of another – so would include road traffic accidents and workplace accidents.

Currently, in England and Wales, only the husband or wife or civil partner of the person who died – or the parents of children under 18 – can claim bereavement damages. Other relatives are excluded.

In England and Wales, the level of compensation is also capped at a fixed sum – currently £15,120 (in January 2016, it was £12,980). This figure continues to be only a small proportion of the potential claim in similar cases in Scotland.

Fatal accident damages in England: case study (2016)

The programme carried an interview with a BBC producer whose 70-year-old father had died as a result of a cycing accident in central London.

He was struck from behind by a car, knocked off his bike and hospitalised with serious injuries from which he died 3 weeks later.

She would have been able to claim bereavement damages had the accident happened in Scotland but she was not eligible under English Law.

To reflect her father’s “pain and suffering” between the date of the accident and his death, his estate was entitled to damages of about £2,000. She said the total award was of the order of £20,000 and it included sums for:

Her cost of flying back from the USA – where she was at the time – to London;

Funeral expenses;

Cost of the headstone;

Loss of personal possessions he was carrying at the time, including his laptop and phone.

She was asked what she thought of the law in England and Wales not allowing her a personal claim for bereavement damages and explained: “Well, I was quite peeved about it at the time because, as I understand it, if you are a child and not a spouse, there is no way of claiming this amount of money.”

“I thought, well, my Dad was very involved in my life. We were very close. He and I spent a lot of time together. He did a lot of things for me: from cooking to helping me with DIY around the house. The plan was always that, when I had children – he was a teacher and he was semi-retired – he would retire fully and look after my child.”

“There was no kind of recognition in the eyes of the law that I had lost this; no recognition that something – a major part of my life – had been taken away from me and no one would compensate me for that.”

Comparisons with Scotland

Returning to Andy McDonald, MP, he said he hoped his new legislation would give rights in England and Wales to grandparents, siblings and persons who can demonstrate close family ties with the deceased (as continues to be the case in Scotland).

He was challenged to justify these proposed changes to the law on the basis that they might open the gates to a flood of new claims, increasing pressure on insurance companies and thereby pushing up premiums.

Mr McDonald pointed out that negligence claims resulting from deaths are not commonplace. The general trend in numbers of fatal road traffic accidents and accidents at work is downwards. In any event, he said, nothing should prevent us doing the “decent humane and civilised thing”.

Looking to the experience gained in Scotland, he said the sums paid out by way of compensation in fatal cases are not huge. Indeed, when the public was surveyed about levels of compensation, it indicated that the Scottish courts’ valuations were out of step with public opinion, as being too low.

He gave an example of a Scottish award to an elderly parent, following the death of their 54-year-old child: “a mere £12,000”, in his words. He went on to say that: “Sometimes awards are about £30,000/£40,000 and [in another case, where the claimant was a 21-year-old sibling] an award was made of £60,000 – so this is the sort of range of awards.” (Remember that these figures were being discussed in 2016 and updating the awards would require an inflationary uplift factor of at least 1.5 – i.e. increase these figures by at least 50 per cent. So, £12,000 becomes £18,000; £60,000 becomes £90,000).

His point was that, under the system he proposed for England and Wales, each case would depend on its own particular circumstances and there would be no “one size fits all” assessment of compensation levels. This would be a much fairer system, more in line with public expectations and more in line with the system already in place in Scotland.

Damages for the death of a relative in Scotland

The present Scots Law in this area has been in force since 07 July 2011 (Damages (Scotland) Act 2011).

Relatives are divided into two categories, for the purposes of claims. Members of a deceased’s “immediate family” include spouses, civil partners, cohabitees, parents, children, brothers and sisters, grandparents and grandchildren. They can claim bereavement damages – referred to as a claim for “distress, grief and loss of society” in Scotland.

They can also claim for loss of (financial) support and funeral expenses.

A broader group of relatives (including aunts, uncles, nephews and nieces), who are not able to claim bereavement damages in Scotland, can nevertheless make a claim for loss of support and funeral costs, where appropriate.

How we can help

If you have any questions regarding the matters covered in this article (“Bereavement Damages – Scots Law used as a benchmark for reform”) or about any aspect of our personal injury claims services, please get in touch with us at our office in Elgin, Moray. All initial enquiries are without charge and there is no obligation to take matters further.

You can contact Marie or Peter on 01343 544077 or send us a Free Online Enquiry.

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