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Bereavement Damages – What a difference a border makes…

The Association of Personal Injury Lawyers (of which Balfour+Manson is a member) is conducting a high profile campaign regarding the law on bereavement damages – the damages one can seek for the loss of a loved one due to negligence. ‘Bereavement Damages – a dis-United Kingdom’ makes for a rather depressing read, depending on where you live in the UK. It characterises the position in England, Wales and Northern Ireland as being “woefully discriminatory and out of date”.

So what are bereavement damages and how do they differ across the UK?

In Scotland, the position is set out in the Damages (Scotland) Act 2011. The damages payable to relatives are characterised as compensation for the distress and anxiety endured by a relative in contemplation of the deceased’s suffering, along with their grief and sorrow and the loss of the deceased’s society and guidance. Solicitors tend to shorten that down to a ‘loss of society claim’.

In terms of such claims, the relatives entitled to claim are as follows:

  • The deceased’s spouse or civil partner or the cohabitee of the deceased;
  • The parent or child of the deceased;
  • The brother or sister of the deceased or person who was brought up in the same household as the deceased;
  • The grandparent or grandchild of the deceased;
  • Any other ascendant or descendant of the deceased.

There is no distinction in the Act between whole/half blood relatives and step-relatives and adopted relatives are treated as full relatives of the deceased. The test is whether the relative had been accepted into the deceased’s family, or vice versa.

In addition, the deceased’s executor is entitled to make a ‘transmissible solatium’ claim, which entitles them to claim damages for the deceased’s pain and suffering prior to death, in the deceased’s place. The level of this award can vary depending on a number of circumstances, including how long the deceased suffered before their death and how conscious/aware they were of what was happening.

A key point to highlight is that the Scottish courts are entitled to make whatever award they feel is just in the circumstances – there is no statutory limit, though of course the court is guided by past decisions. The courts take into account the family circumstances at play and, as such, solicitors require to lodge birth and marriage certificates to prove the connections between the deceased and the Pursuers. Solicitors are also required to lodge ‘relationship statements’, where Pursuers set out the closeness of their relationship with the deceased. This can start out as a difficult process but often it becomes quite cathartic – giving Pursuers a chance to bring their lost loved one to the forefront of the claim and also demonstrate to the court and the Defender the devastating impact of their loved one’s death on their family.

There is a degree of flexibility and the court will take into account the circumstances of each Pursuer – for example in the McGee case the court awarded different damages to each of the late Mr McGee’s grandchildren to recognise the degrees of closeness each enjoyed with their late grandfather. In the very recent case of McArthur damages were awarded to the deceased’s biological parents as well as his step-father. The judgment goes into great detail about the deceased himself and the nature of his family relationships.

The contrast with the position in England and Wales is stark. The only relatives entitled to make a claim for bereavement damages are the deceased’s spouse, cohabiting partner or parents (the latter only where the deceased was a minor and not married). In addition, in situations where a deceased child is deemed ‘illegitimate’, only the deceased’s mother can claim. It was not until October 2020 that cohabiting couples in England and Wales could claim bereavement damages. To be eligible, couples must have lived together for at least two years. It is hard to comprehend that this is the position, set out in blackletter law, in the twenty-first century. Bereavement damages are fixed in law at £15,120, for each class of relative set out above. The Ministry of Justice has previously rejected criticisms of the system in England and Wales, stating that bereavement damages were “only ever intended to be a token payment payable to a limited group of people”.

In Northern Ireland, the position is worse still – cohabiting couples, no matter how long they have been together, are excluded. The statutory sum is fixed at £15,100.

APIL’s report contains some heart-breaking case studies from bereaved relatives who could not make a claim for the loss of their loved one. One particularly tragic example given relates to a young woman who was told she was not eligible to claim damages for her partner’s death because they had only lived together for eighteen months. They had a daughter together and were saving to purchase a home.
Of course, no amount of money can properly compensate someone for the loss of a loved one. Pursuer lawyers in Scotland have long bemoaned the damages position in Scotland as being vastly insufficient in cold financial terms. The reality is that, compared to other jurisdictions, the Scottish system at least recognises that the loss of a loved one – no matter their age, marital status or perceived ‘legitimacy’ – has a profound impact on a family, and not just immediate relatives. It also goes some way to recognise that society has moved on from very traditional ideas of what a family looks like – it does not only recognise the idea of the traditional nuclear family of the past. The writer supports APIL’s campaign and hopes it achieves proper compensation for families, no matter where they live.

Balfour+Manson are specialists in obtaining damages following the death of a loved one. If you would like some advice, please get in touch.