The somewhat controversial function of bereavement damages

The title above is taken from a new consultation paper on this topic, the text of which continues by clarifying that the award is “a token payment in acknowledgement of the grief caused by the death” and should “not be regarded as reflecting, in any way, the value of the deceased’s life. This consultation closes on 30 November 2015. In addition, a highly relevant Private Member’s Bill has just been introduced in Parliament.

The present level of statutory bereavement damages in England & Wales is the somewhat over-precise figure of £12,980. This was reached after applying, by analogy with common law general damages for personal injuries, a ten per cent increase to its pre-Jackson level of £11,800.

Equivalent awards in Scotland are also statutory, at least in the sense that power to make the award is found in legislation; that being The Damages (Scotland) Act 2011. The level of the award may be “such sum, if any, as the court thinks just” for the loss of society of the deceased. Depending on the deceased’s family circumstances, awards may be separately made to a spouse, to parents and to children. The aggregate award associated with a single wrongful death may be in six figures – perhaps even as much as a quarter of a million pounds – even in the case of a fairly modest-sized family. The English award is, in contrast, shared across all qualifying relatives.

The position in Northern Ireland is far closer to that in England. The level of £11,800 still currently applies (perhaps in the absence of the Jackson reforms applying in that jurisdiction). In the Irish Republic, the level of awards is also statutory and is currently subject to a ceiling of €35,000 (in rough terms around £27,000).

The latest consultation on the topic was issued by the Department of Justice in Northern Ireland on 5 October. Were an increase to be made, the DoJNI asks whether that should be (i) either to the same level as England & Wales, or (ii) based on the application of prices inflation to the £11,800 figure last set in 2008? (The latter approach would yield a current figure in the region of £14,500).

The consultation paper points out that there have been small numbers of fatal accident awards made in Northern Ireland in recent years: 20 in 2012, 8 in 2013 and 6 in 2014.

The low numbers of awards and the apparently modest possible increases should not necessarily be taken as indicating that this is something on which responses are not required from insurers and compensators. Quite the contrary: the DoJNI will expect engagement from all stakeholders and those on the defence side should also have an eye on how the possible outcomes might play out in England & Wales. In that regard, it should be noted that “reform of the law on bereavement damages” is the first heading in APIL’s current agenda for change.

More topically, and just eight days after the DoJNI consultation began, the Negligence and Damages Bill was read in Parliament for the first time on 13 October. This Private Member’s Bill seeks to reform not only bereavement damages but also the law on claims for secondary psychiatric harm and that in respect of ‘lost years’ claims.

The Bill does not appear to have Government support (we think it unlikely that it would secure it) and it is listed well down the order paper in its allocated date for second reading. For these reasons, and as things stand at present, it would not be expected to proceed. Nevertheless, these are important and complex issues and hence the measures set out in the Bill are certainly worthy of further scrutiny.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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