The right to bereavement damages?
With the Hillsborough inquests re-opened at the end of March, the distress and grief of the families and loved ones of the fans killed simply for going to watch a football match is on everyone’s minds. While it is hoped that the bereaved will eventually get justice, many have already been disappointed at the low level of compensation for the grief and suffering for the loss of a loved one, which currently stands at £12,890, and was even lower at the time of the Hillsborough disaster.
Many believe that £12,890 – the cap on the amount you can claim for grief and suffering if someone causes the death of your loved one – is simply too low a figure. Of course, there are other damages that can be claimed. If you were financially dependent on your loved one then you can also sue for the loss of their future earnings, or if you need psychiatric treatment as a result of your loss you can claim back the costs of this.
But to tell somebody undergoing ‘normal’ bereavement following the death of their child that this suffering, which will never go away and which will probably destroy their life, is only valued at £12,890 is something which no lawyer wants to do, though we do have to, and frequently.
Added to this unfairness is the geographic lottery that’s also involved. In Scotland there is no limit on the damages which can be claimed for pain and suffering following bereavement. Instead, a judge considers the matter on a case by case basis and takes into account individual circumstances before reaching a decision on bereavement damages. There is no statutory limit, although common sense is expected to prevail, and in practice the awards in Scotland are often much higher than the £12,890 available in England and Wales.
Also, in Scotland, a wider circle of relatives can claim damages for pain and suffering following a death. Wider would include, for examples, brothers, sisters, and children. In England and Wales, many are shocked to find that they are not entitled to damages for the pain and suffering they experience following the death of a parent, or a sibling, or a child who is over eighteen. Many find this barbaric. Fathers can’t claim over the death of even a young child if that child was born out of wedlock.
In England and Wales, the only people entitled under current law to claim these damages are a spouse, a cohabiting partner (who has cohabited for a minimum of two consecutive years), the parents of an unmarried legitimate child under the age of 18 and the mother of an unmarried illegitimate child under the age of 18. Over the years there have been incremental increases in the level of award and a slight relaxation in the categories of people entitled to claim to include a cohabitee as well as a spouse. Save for these changes however, the scope and amount has remained limited since the Fatal Accidents Act 1976 came into force 38 years ago.
The Association of Personal Injury Lawyers (APIL) is currently campaigning for a change in the law in England and Wales relating to bereavement damages, arguing for the law to be changed to be like Scotland, with no cap on damages and children and siblings able to claim.
It’s evident both from the research undertaken by APIL and from my own experience in acting for bereaved clients that the majority of people consider the categories too restrictive and the amount awarded too low.
Fundamental questions of social justice and parity arise. It is the twenty first century, and the law has been extended to include a cohabiting partner, but if such a couple have children, the male partner is discriminated against. He remains unable to claim bereavement damages should any of his children from that partnership suffer a wrongful death. Furthermore, to any parent, a child is a child whether they are 10 years old or 30 years old, and the suffering at their death is extreme. Why should the parents of a child under the age of 18 be able to claim the bereavement award but if the deceased is even a day over his or her eighteenth birthday the entitlement ceases?
To many, this seems an arbitrary distinction. The APIL campaign is suggesting a judge-led approach akin to the Scottish system. This has its advantages but also brings to the fore the difficulty in assessing the life of a loved one and considering the level of the loss of the bereft family. On what basis does a judge make this assessment? If the Scottish approach was to be adopted in England and Wales, there would need to be clear guidelines.
Clients often say to me that no matter how much is awarded, no monetary value can even indicate the level of their loss. This is both entirely reasonable and an argument for retaining the current system. The amount is too low, but it is not intended as a replacement for a loved one; more a token recognising that the negligence of another has caused the loss as well as recognising the grief and trauma associated with the loss of a loved one.
However, many bereaved people still see the level of the award as yet another injustice and an insult to the memory of their loved one. Many do not understand that under the current system in England and Wales, the amount recovered is set by statute and it is not an individual’s assessment on what is appropriate in the circumstances.
Whatever course the government may take on the issue of bereavement damages, there can be no true comfort for those who have lost loved ones through wrongful death. Any changes to the law will not change or necessarily lessen the grief the bereaved suffer. However if the categories are extended and the amount increased (with careful guidance on how to approach the assessment) it would better enable those left behind to feel they could do something worthwhile in the future in the memory of their loved one.