Damages for bereavement: differing valuations across UK jurisdictions

The announcement yesterday (19 March 2020) of an inflationary increase in statutory bereavement damages in England & Wales once again brings approaches to valuing of this head of loss into focus. This piece looks at the differences across jurisdictions within the UK. It is worth emphasising that this is an entirely devolved topic for the UK’s constituent jurisdictions and that there is no evidence at all of any legislative moves towards harmonisation in this discrete area.

England & Wales has seen the most recent changes, with moves in the last few weeks by the Ministry of Justice (MoJ) to admit cohabitants (of at least two years’ duration) to the statutory list of those eligible to claim bereavement damages under section 1A of the Fatal Accidents Act 1976 and to increase the level of the single award – ie a fixed sum to be shared among claimants, regardless of number – to £15,120 from 1 May 2020 to reflect inflation.

The idea of a single award (and, to a lesser extent, its level) had been reviewed by the Law Commission around two decades ago and certain legislative reforms were recommended. Those ideas have failed to find their way into the agendas of successive governments. The original concept of the award therefore remains in place and was summarised in these terms by the MoJ in February 2020:

“Bereavement damages are and were only ever intended to be a token payment payable to a limited group of people, and the limits imposed on the categories able to claim are not intended in any way to imply that people outside those groups would not grieve at the death in question. Different views can reasonably be held on the extent to which the bereavement damages award should be available.”

In Northern Ireland, the broad approach is very similar to that in England & Wales, with a single sum available under the relevant legislation (the Fatal Accidents (Northern Ireland) Order 1977, as revised) regardless of the number of claimants. As in England & Wales, the “token” nature of the award has been highlighted by the administration:

“The somewhat controversial function of bereavement damages is to provide a token payment in acknowledgement of the grief caused by the death. The award is not intended to be regarded as reflecting, in any way, the value of the deceased’s life or as a punishment for the negligent person who caused the death.” [DoJ NI, October 2015]

The frequency and level of increases in the amount have been slightly different to those in England & Wales. The current award is set at £15,100 (for deaths after 1 May 2019). The historic levels in both jurisdictions are set out in tables at the foot of this piece.

Scotland takes a very different and much broader approach than those above and one which is now codified in the Damages (Scotland) Act 2011. The key differences are: (i) much wider categories of those eligible to claim (ii) awards being made on a per claimant basis rather than a fixed sum for all and (iii) such awards sums being, in effect, unlimited and reflecting levels in previous cases (including jury assessments).

Under Scots law, these claims in aggregate may be ten or more times greater than the £15,000 or so available in England (as of this May) and Northern Ireland. It is not unrealistic for a surviving spouse to be awarded around £70,000 and children around £30,000 each. Grandchildren and grandparents are also eligible to claim, as are siblings, with each likely to be entitled to around £10,000 (or more).

Where does this leave matters?

The marked discrepancy in awards under our different legal systems highlights the critical importance of ensuring that the applicable law is considered properly in fatal claims involving factors connected to different parts of the UK. The well-documented difference in discount rates also serves to re-emphasise this, since in a fatal claim it will apply to the assessment of claim for the loss of dependency.

These divergent approaches to bereavement compensation are long-established features of each devolved legal system. The financial differences should not of themselves, however, be taken as indicative of any differing levels of sympathy for those who have lost a family member as a result of negligence. Nevertheless, the differences are marked and not likely to be easily understood by anyone making such a claim.

There have, unsurprisingly, been calls for reform aimed at ‘levelling up’ towards the figures available in Scotland. APIL issued a manifesto before the December 2019 general election calling for “the modernisation of the law on bereavement damages in England and Wales, bringing it in line with the law in Scotland.” But the experience of the last couple of decades and the materials issued recently by the MoJ in England show no political appetite to undertake any wide reform here and it must be concluded that it is clear that such change is almost certainly not going to happen in the medium term at least.

England & Wales
date of cause of action (ie wrongful death) level of award
before 01 01 1983 no award
between 01 01 1985 & 31 03 1991 £3,500
between 01 04 1991 & 31 03 2002 £7,500
between 01 04 2002 & 31 12 2007 £10,000
between 01 01 2008 & 31 03 2013 £11,800
between 01 04 2013 & 31 04 2020 £12,980
on/after 01 05 2020 £15,120
 

Northern Ireland

date of cause of action (ie wrongful death) level of award
before 01 01 1983 no award
between 01 01 1983 & 31 03 1991 £3,500
between 01 04 1991 & 31 03 2002 £7,500
between 01 04 2002 & 31 12 2007 £10,000
between 01 01 2008 & 31 03 2016* £11,800
between 01 04 2016* & 31 03 2019* £14,200*
on/after 01 05 2019* £15,100*
* operative dates and amounts diverge from those in England & Wales

 


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Alistair Kinley
Director of Policy & Government Affairs, BLM
alistair.kinley@blmlaw.com

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