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Inconsistencies remain in award of bereavement damages

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If someone dies due to the negligence of another person or an organisation, compensation can be awarded as a consequence of two specific Acts of Parliament: the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.

The Fatal Accidents Act 1976 provides that the dependents of the deceased are entitled to claim compensation if death occurred as a result of negligence. ‘Dependents’ are defined as the wife, husband or civil partner of the deceased, any of the deceased’s biological children or a child treated as their own, parents or grandparents and any siblings of the deceased. 

The Law Reform Act enables a separate claim for compensation to be brought on behalf of the deceased’s legal estate if their death was caused by negligence. A Grant of Probate is required if the deceased had made a Will or Letters of Administration if there is no Will to pursue this type of claim and any compensation received is distributed through the estate to the beneficiaries. 

Claims under the Law Reform Act include claims for the following:

  1. Pre death pain and suffering experienced by the deceased
  2. Funeral expenses

There are a number of different heads of compensation that can be sought under the Fatal Accidents Act:

  1. A claim for funeral expenses
  2. Statutory Bereavement Award
  3. Loss of Consortium (also known as loss of a special person)
  4. Loss of Past and Future Financial Dependency 
  5. Loss of Past and Future Services Dependency 

Dependency claims are usually pursued by the executors of the deceased’s estate, nominated in a Will (or those authorised to represent the deceased if there is no Will) on behalf of the dependents. If, however, the executors do not begin a claim for compensation within six months of the death, the dependents can pursue a claim on their own.  

The question of who is eligible to recover bereavement damages in England and Wales as a ‘dependant’ has been under debate for some time. The distinction between spouses and civil partners and co-habitees was found to be incompatible with the European Convention on Human Rights, particularly following a Court of Appeal judgment in 2017.

This is significant as the amount of the statutory bereavement award was increased from £12,980 to £15,120 (a substantial sum for many) for deaths on or after 01 May 2020 in a remedial order to amend the Fatal Accidents Act 1976 (The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020) published 16 March 2020. 

However, despite pressure from many interested parties, such as the Association for Personal Injury Lawyers (APIL), to allow all co-habiting partners to claim the statutory bereavement award, the range of eligible claimants has been extended only to those unmarried co-habiting partners with whom the deceased was co-habiting for at least two years immediately prior to death. The government has said it has no plans to implement further amendments or changes.

Chris McKinney, partner in Shoosmiths serious injury team, comments:

“Whilst these reforms are an improvement, many believe they do not go far enough. There also remains disparity in the law relating to bereavement damages across the UK.  In Scotland, there is a much wider range of grieving people, both married or unmarried, who are eligible to claim bereavement damages, with claims assessed on the individual facts of each case.”

APIL has continued to argue that the law in England, Wales and Northern Ireland should be changed to reflect the law in Scotland and has set up a webpage dedicated to this campaign.

 
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Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022

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