Fatal accident claims: the bereavement award has increased but not by enough

For fatalities arising on or after 1 May 2020 bereavement damages as awarded under the Fatal Accidents Act 1976 have risen from £12,980 to £15,120. This reflects inflation in the period since the previous increase in April 2013. My colleagues have previously blogged about the need for this award to increase (see here) but it was to be hoped that this would be by a substantially greater amount.

The government has described bereavement damages as a “token award” in acknowledgment of grief but as a token it fails to represent much of an acknowledgement. On the contrary, our clients are often aggrieved and sometimes offended when they discover that their grief is to be compensated by a meagre amount of money, and this new figure (which represents a 16% increase) will prompt the same dismayed reactions.

To put the amount into perspective, even under the new award parents whose child has died in a tragic accident resulting from negligence will each have a share in the bereavement award worth £7,560 (the award is never varied based on the number of qualifying claimants so in effect this is what would be received per person). The Judicial College Guidelines provide recommended amounts for pain, suffering and loss of amenity awards for personal injuries and this figure would fall squarely within the brackets for minor, non-permanent injuries– it is not proportionate to the kind of serious, long term suffering that most bereaved parents experience. In Scotland, where the level of awards for bereavement damages is assessed on a case by case basis, amounts are generally much more generous and have been recorded as high as £140,000. Although no amount of money can truly compensate the bereaved, figures of this order are a truer reflection of the ongoing pain of losing a loved one and show the direction in which the system ought to move in England & Wales.

The case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors [2017] EWCA CIV 1960 has resulted in the drafting of The Fatal Accidents Act 1976 (Remedial) Order 2020 which, if it is passed as expected, will extend bereavement damages to cohabitees (subject to qualifying criteria –the draft Order can be read here). This is a welcome development, but that is as far as the Order goes.  The level of bereavement damages could and should have been considered by the government at the same time. The Joint Committee on Human Rights’ and the Association of Personal Injury Lawyers (APIL) invited the government to review the bereavement damages scheme as a whole. Unfortunately, the government has issued a short response but has taken no substantive action on these points bar agreeing to the inflationary increase.

The Scottish example suggests that higher awards will be achieved if we adopt an assessment-based system. The government is currently reluctant to move in this direction as it is concerned about the courts making “intrusive enquiries into the quality and durability of an eligible relationship.” I would argue that such enquiries would be no more intrusive than are commonly made for the purpose of inquests and personal injury claims.  It is part of the skill set of solicitors to navigate clients through enquiries with sensitivity and without judgement.

The way forward is uncertain. All that can be said for sure is that we as lawyers should continue to support campaigns such as APIL’s that aim to reform the bereavement damages scheme for the benefit of our clients.  We should not be afraid to take on claims (like Smith v Lancashire) that may force changes in this difficult area of law.