Are bereavement damages in medical negligence cases sufficient?
What are bereavement damages and what amount can be claimed?
Within the current legal framework (as at June 2015), bereavement damages can be claimed from whoever has negligently caused the death.
Since 2013 the amended Fatal Accidents Act sets a fixed award for bereavement damages in England and Wales at £12,980. This can be claimed by:
- the wife or husband or civil partner of the deceased; or
- where the deceased was under the age of 18 (and not married or in a civil partnership) by either:
- the deceased’s parents, if the deceased was legitimate (born to legally married parents); or
- the deceased’s mother, if the deceased was illegitimate (not born to legally married parents).
That is not very much and the list is quite short…
It seems that the view, almost universally, amongst legal practitioners and the general public is that the bereavement award is far too low and the list of possible claimants is far too limited. While it is worth mentioning that the amount is not granted as compensation for the death itself, but rather as a gesture for those affected, it is still very hard to argue that the amount is even close to sufficient. Many, quite rightly, point to the position in Scotland as an example of a fairer system.
What is the Scottish position and why is reform so important?
The Scottish system for bereavement allows for a far wider pool of relatives to claim. In addition, it also allows for judicial consideration so that each case can be valued on its own merits.
Beyond this, there is no statutory limit on the bereavement award meaning that, in practice, awards in Scotland often far exceed the limit imposed in England and Wales. Whilst common sense is expected to prevail in the Scottish system regarding the size of an award, it makes complete sense that there should be a discretion that is exercised in relation to each specific case.
That discretion is particularly important because our view of family life has changed immeasurably over the past few decades. Does society still hold the view that the partner of a woman who has died after a 30 year relationship be any less entitled to a bereavement award than the husband of a woman as died after a relationship of just 5 years? We suspect that the answer is a resounding, no.
Fiancés also miss out, as do parents of children over 18.
A survey carried out by the Association of Personal Injury Lawyers lends some statistical force to this view. They found that 80% of people believe the Scottish system is fairer and that 74% of people are of the belief that bereavement awards should be considered on a case by case basis.
Quite simply – people believe that the current system is outdated and not fit for modern times.
How should the framework be reformed?
First of all, critics believe that the list of potential claimants needs to be expanded. There are many people who are deeply affected by the loss of a loved one but who will miss out because they do not meet the criteria to claim. Expanding the pool of people eligible for bereavement damages could go some way to combatting this.
Even if the sum for bereavement damages continues to be set at a specific statutory level, it is hard to argue that the amount itself should not be increased. Indeed, surveys suggest that over 80% of people believe that the award should be at least £15,000 and over 55% of people went so far as to suggest that a bereavement award should be £100,000. The thrust of these statistics demonstrate that public opinion is out of line with the current framework.
Of course, there is bound to be a debate about any revised amount and this is evidenced by the fact that the public’s views range from £15,000 to £100,000. What it demonstrates is that the issue is far from straightforward and, accordingly, the logical conclusion is that analysis should be applied to each specific case on a claim by claim basis.