Bereavement Damages: a Dis-United Kingdom

This is the title of a report published yesterday by APIL which examines the different approaches to bereavement damages across the UK, an issue we had covered in detail last March in this post.

As is well-known, the use of statutory amounts of damages and closed classes of eligible claimants in England & Wales and in Northern Ireland contrasts with a broader, subjective approach in Scotland where higher awards are often made to members of a deceased’s extended family. It is no surprise that the report calls for some levelling up of the laws, but what is new is the level of public support it purports to show for change, with around 70% of some 2,000 respondents to YouGov surveys regarding the statutory levels as too low and supporting a more subjective approach.

Although this is a highly emotive area, it is nevertheless a serious legal topic which has gained some traction with policymakers over the last couple of decades, starting with the Law Commission’s report produced in the late 1990s by Professor Burrows (who is now a Justice of the Supreme Court). The APIL report provides a summary history of the various proposals and attempts at reform.

Although no Parliamentary time has so far been found for any meaningful reform of the fatal accidents legislation. The APIL report is a clear restatement of its call for change and it follows that the prospect of reform will remain an ongoing debate in the policy field.

We saw a government Bill, in draft form only, around a decade ago but nothing was ever introduced in Parliament. However, this is a topic which could be suited to a Private Members’ Bill in the new Parliamentary session which commences on 11 May (the 2019/21 session having ended yesterday). If that were to happen then any attempt by government – even one with an 80 seat majority – to close it down would risk looking at very least awkward and at worst completely insensitive.

The cost of making any change would not be negligible and would fall on public and private sector compensators. Cost is relevant, of course (particularly so at the present time), but in and of itself it is probably not an entirely convincing argument for resisting change. My suspicion would be that if the 70% of respondents who supported change had also been asked “Would you be prepared to see modest increases in tax and insurance premiums to pay for these changes?” they might have said “Yes.” If that is a reasonable assumption, it would suggest that this is an issue which would certainly be worth keeping under observation from time to time.

Alistair Kinley at BLM
Alistair Kinley, Director of Policy and Government Affairs at BLM

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