Acts of Parliament and other pieces of government legislation usually run to many pages. However, when the Damages for Bereavement (Variation of sum) (England and Wales) Order came into force on the 1st May 2020, it proved to be one of the shorter parliamentary statutes that you will find.
It simply provided, that the amount of bereavement damages or compensation, payable to certain relatives of a person who has been killed in a fatal accident that was caused by someone else’s negligence (carelessness), after 1st of May 2020, would be increased from £12,980 to £15,120.
On the face of it, that’s good news. After all, it’s an increase in compensation. However, it’s worth noting that this fixed-figure sum (statutory award) was last increased in 2013. On that basis, the current increase is a paltry one.
It is to be noted that the increased Bereavement Award is only payable in cases where the accident that caused the fatality took place on or after 1st May 2020. It will not apply to cases that were ongoing on or after the 1st May. In those instances, the award will remain at the previous sum of £12,980.
Smith v Lancashire Teaching Hospitals NHS Trust
The overdue increase in the size of the Bereavement Award was indirectly prompted by the Court of Appeals decision in 2017 in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust. The amount of the Bereavement Award was not an issue in the Smith case, but the categories of people entitled to the benefit of the Award following a loved one’s death, was very much at the core of the case.
The Claimant in the Smith case was the partner of a man who died as a result of the negligence of the Defendant Hospital Trust. The couple were not married at the time of the man’s death but had been co-habiting. Cohabitees have historically not been in the category of those persons entitled to the Bereavement Award, as detailed in our blog Fatal Accident claims – A Brief Guide.
The Court of Appeal overturned the High Court’s decision which initially found against the Claimant. The Court of Appeal decided that by denying the Claimant the right to bring a claim for the Bereavement Award, because she was a cohabitee and not married to the deceased at the time of his death, section 1A of the Fatal Accident Act (which lists the category of relatives entitled to claim for the Bereavement Award), was incompatible with Article 8 of the European Convention on Human Rights.
This decision, in effect, forced the Government to review the matter.
The Government responded, after considering representations from APIL (The Association of Personal Injury Lawyers) and after reading the report of 10th July from the Joint Committee on Human Rights. Hopes were high that The Ministry of Justice would take the chance to both widen the category of those entitled to claim the Bereavement Damages Award and to not only increase the amount of the Award but even to go some way towards the position of of Scottish Law’s treatment of the loss of a loved one following a fatal accident caused by the negligence of another party. In Scotland the ‘immediate family’ can claim for:
- Loss of society (in effect, bereavement, anxiety, distress and grief)
- Loss of financial support
- Funeral expenses
It is the claim for loss of society that most equates to English Law’s Bereavement Award. In Scotland, this is not a set amount and the size of that award is to a great extent determined by how close the family member was to the deceased, their relationship to them and the deceased’s life expectancy when they passed away. Trying to exactly compare the amount of damages between the English and the Scottish systems is difficult, but suffice to say that the sums awarded for the loss of the person as a family member, are significantly higher in Scotland than England and importantly is decided on a case by case basis.
What did the Ministry of Justice decide to do in England, in response to the Smith case?
Unfortunately, it failed to take the opportunity afforded to it to make some radical changes to the whole question of dependency awards following a fatal accident. Instead of agreeing to move to a more flexible, case by case assessment of bereavement award damages, it in fact responded as follows:
24.In relation to the Committee’s fifth point, as noted above the Government does not accept that the existing provisions on bereavement damages are discriminatory. It believes that the existing system involving a fixed level of award and clear eligibility criteria represents a reasonable, proportionate and practical approach, and does not have any plans for wider consultation on the bereavement damages regime or the FAA more generally. However, it considers that an adjustment to the level of the bereavement damages award is appropriate to reflect inflation in the period since the previous increase in April 2013 and will take steps to lay the appropriate Order before Parliament in due course.
In other words, it would:
- Increase the existing level of fixed bereavement award
- Amend the category of those eligible to claim the award to include cohabitants
(although it added the extra condition that the couple must have been cohabiting for a period of at least two years by the time of the Fatal Accident in question) to be able to claim.)
Conclusion
At Mooneerams solicitors, we have pursued many fatal accident claims on behalf of the dependents and families of loved ones lost through tragic accidents. To a person, they are inevitably upset at the fact that the bereavement award amounts to the small amount that the fixed award represents. It’s no exaggeration to say that most of them feel that it is an insult.
In deciding not to use the occasion afforded it by the decision in the Smith case, to look more broadly at the Bereavement Damages scheme with a view to initiating reform that many feel, is long overdue, the MOJ has signalled in effect that it considers the matter closed for the foreseeable future.
