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Bereavement Damages – are they enough?

Michael Roberts, solicitor in the clinical negligence team, and William Broadbent, solicitor in the personal injury team, discuss the recent increase in bereavement damages and the differing viewpoints on the issue.

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Michael Roberts is a medical negligence solicitor who specialises in a range of medical injury claims including brain injury and heart cases. William is a solicitor in the personal injury department and specialises in acting for claimants suffering serious injuries in road traffic collisions and representing vulnerable road users such as pedestrians and cyclists.
The Lord Chancellor has recently confirmed that Bereavement Damages in fatal personal injury and clinical negligence claims will, on 1 May 2020, be increased from £12,980 to £15,120. This is a welcome increase to an element of damages which has long been seen by many as a token amount, but does it go far enough?
 
Bereavement Damages are a statutory payment made to defined individuals in a personal injury or clinical negligence claim resulting in death. The rationale of the award is to compensate bereaved families for the non-financial benefits which would have been enjoyed but for the death, to provide practical assistance to the relatives, to recognise that the death was wrongful, and to punish the party who caused the death.
 
The damages, set by statute, has crept up over the years, hitting the current amount of £12,980 in 2013 before stagnating at this level – despite increases in inflation – until now. As it is set by statute, courts are not able to consider this on a “case-by-case” basis. The award, if it applies, must be the set amount, and it is a total amount, rather than per person. 
 
Whilst one cannot put any price on the life of a loved one, many have, for a long time, observed that the current level fails to serve as sufficient recognition.  In fact, many claimants see this as more of an insult, rather than recognition, to the life of their love one. It is one of the absurdities of the law that it is often “cheaper” to cause a death than to cause an injury. 
 
Some of the most awful cases of clinical negligence involve the death of a baby or a child. This is a situation that no parent should ever have to face. It is the extinction of everything that their child was and was going to be in future and, understandably, such a loss can cause extreme grief and psychological injury which will linger with the parents for the rest of their lives. In addition, knowing that, but for an act of negligence, it could have been prevented only amplifies these feelings. Imagine, then, telling the parents that their child’s life was worth £12,980 (or, for that matter, £15,120) and it puts into perspective just how derisory the amount is. Worse still, it instils a sense of the defendant “getting away with it”.
 
Beyond the problems with the level of the “Bereavement Damages”, the class of beneficiaries who can receive these also seems to fail to recognise those affected by the death. It is only available to the spouse or civil partner of the deceased, the parents of a “legitimate child” or the mother of an “illegitimate child”. The addition of civil partners is only a recent development. Beyond the archaic language, these categories leave some significant exclusions. With marriage becoming less common, excluding couples who simply decide to live together mean a large number will not qualify. Furthermore, if that unmarried couple had a child who died, only the mother would be eligible for the payment. The distinction between a child dying the day before their 18th birthday compared to the day after also seems alarmingly definitive. Strangely, children are not eligible for any bereavement award at all if they lose a parent.
 
The counter-argument frequently raised is that it is necessary to draw a line somewhere. Whilst nobody would argue otherwise, we need not look far to see where the line has been drawn in other jurisdictions. Scotland, for instance, has both a wider category of beneficiaries and allows the Court the discretion to consider what they feel would be a suitable level of compensation. Some examples include damages of £32,500 in 2004 to the wife following the death of her 75-year-old husband; £48,500 in 2005 to the wife following the death of her 34-year-old husband; and, £90,000 to the parents following the loss of their child at the age of 21.  This approach allows the court to consider, in each case, the particular circumstances and arrive at a compensation amount which is deemed just in those circumstances.
 
It is recognised that there are other damages available to the family following a death. For example, funeral expenses and travel expenses relating to the death are recoverable. In addition, provided that they can establish that they were dependent on the loved one for either financial support or services, a claim can be made for the loss of that support or those services . However, these damages are purely financial and are not intended to provide any recognition of the grief and suffering of the bereaved. Also, this too is limited to particular categories of individual, which again can produce anomalies and unjust outcomes.
 
Damages can also be given for the pain, suffering and loss of amenity suffered by the deceased person themselves. Again, however, amounts are paltry. For example, for someone who dies instantly in a road traffic incident, the amount of compensation is likely to be in the hundreds of pounds.
 
Fortunately, few of us will ever be in the position where we are faced with bringing a claim in these circumstances. However, as a result, this is a topic that receives relatively little attention, meaning substantial legislative change is unlikely and those who find themselves in this situation will continue to be left feeling failed by the legal system. The latest increase, whilst welcome, does not go nearly far enough towards true recognition of a death and its impact on those it leaves behind.

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