English law and the value of life: the limits of the statutory bereavement award
The loss of a loved one is extremely sad for everyone involved. But where the death was the result of medical negligence and therefore avoidable, the effect on those close to them can be devastating.
Although the vast majority of people are not concerned with financial compensation, it is the only legal remedy available when someone has died as a result of poor medical treatment. And this is ultimately why people seek our advice as medical negligence solicitors.
Is compensation available for those who are left bereaved?
In England and Wales, those who have lost a loved one are often shocked to find that they are not entitled to damages for the pain and suffering they experience following the death of a parent or sibling. Compensation can be claimed if the Claimant was dependent in some way on that parent or sibling. However, if that is not the case, then depending on the circumstances of the death, the claim can amount to no more than the recovery of funeral expenses.
The statutory bereavement award is currently capped at £12,980 and can only be awarded following deaths in very limited circumstances. The award can be claimed if the person who has died was either:
- Your child who was under the age of 18
- Your spouse or civil partner
- Your partner with whom you must have lived for at least two consecutive years
Unfortunately, if a child has died and the child was born ‘out of wedlock’, only the mother can claim the bereavement award, not the father. A position that’s hard to comprehend in the 21st century.
It’s also difficult to accept that brothers, sisters and children have no right to claim damages for the pain and suffering they experience following the death of a sibling or parent. It can be even harder to accept that, if your child is over 18, you’re not entitled to damages for the pain and suffering caused.
How does English law differ from other laws when it comes to the bereavement award?
The statutory bereavement award has been variously described as arbitrary, derisory and quite simply unfair. It has been the subject of critical scrutiny on many occasions since its introduction under the Fatal Accidents Act 1976.
English lawyers struggle to understand why Claimants here do not have parity with our friends across the border. In Scotland, each case is considered on its own merits and therefore reviewed and determined according to individual circumstances. Furthermore, there is no limit to the bereavement award in Scotland. Therefore, awards are often much higher than the £12,890 available in England and Wales. In addition, in Scotland, a broader range of relatives can claim damages for pain and suffering, for example, siblings and children.
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Will the statutory bereavement award for England and Wales be reviewed?
The Association of Personal Injury Lawyers (APIL) has been campaigning for a change in the law in England and Wales relating to bereavement damages. It’s argued for parity with Scotland, with no cap on damages and the ability of children and siblings to claim.
In the landmark case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust in 2017, the Court of Appeal held that bereavement awards should be extended to cohabitants where they had been in a relationship for at least two years. This prompted the government to consider and respond to this ruling. This raised hopes amongst Personal Injury lawyers that the government might look again at the Scottish model and consider the system overall.
These hopes were recently dashed by the Ministry of Justice who, whilst conceding that the award now needs to be increased in line with inflation, said the government did not accept that the existing provisions on bereavement damages were 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.’
APIL has said the current system needs updating and that claimants face a lottery depending upon which jurisdiction they are based in. The fixed sum in Northern Ireland is now £15,100. In Scotland, damages have been set as high as £140,000 in one case.
Sadly, it appears that the government are not prepared to make any further concessions on eligibility for the bereavement award in England and Wales. Therefore, a large number of bereaved Claimants will not be entitled to any compensation at all for their pain and suffering following the death of a loved one.
If you believe that you or a loved one has suffered an injury as a result of clinical or medical negligence, or to find out more about compensation claims, call our specialist solicitors on 0117 325 2929 or complete our online enquiry form.