Bereavement damages: is it ever enough to compensate for death by negligence?
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Is it possible to provide adequate financial compensation representing the value society places on life?
This is the question I ask myself every time hear about my colleagues representing those who have lost a loved one through medical negligence. With the law on compensation for death often criticised for being inadequate, family members can feel let down by both the medical profession and the legal system.
A few months ago, my colleague Patricia Wakeford wrote an article considering the compensation available for fatal accidents and the policy reasoning behind the key legislative provisions.
I was therefore interested to read about a recent survey conducted by the Association of Personal Injury Lawyers (APIL) which took views on the adequacy of bereavement damages available under the law of England and Wales. Bereavement damages are an award fixed by legislation which is available to the deceased's dependants and is intended to compensate for the mental suffering undergone by them as a result of the death of their loved one, and/or for the pain and suffering of the deceased prior to death. Unlike other types of damages for death, typically claimed by the deceased's dependants who have suffered financial loss as a result of the death, bereavement damages are awarded without the need to prove any actual loss. The amount was recently increased from £11,800 to £12,980. The award is typically available to the husband, wife or civil partner of the deceased, or his/her parents if the deceased is a child under 18. Notably, a child who loses his or her parent is not included in this list, and neither are the parents of a child who has turned 18.
According to APIL's survey, people who lose a relative in an accident are paid more if they live in Scotland than in England and Wales. Parents who lose a child over 18 in England and Wales receive nothing, whereas in Scotland they are likely to receive thousands. A spouse or partner of the deceased will receive £12,980 in England and Wales, whereas in Scotland, cases are taken on their merits.
2,000 people were surveyed, the majority of whom thought the fixed sum is not high enough, with 57% suggesting a figure of more than £100,000. Another suggestion was that the list of people who should be eligible to receive bereavement damages is extended to include people such as the parents of a deceased child regardless of age, as well as the co-habitee and the fiancee of the deceased.
This is certainly not the first time that bereavement damages have been criticised. In 1999, the Law Commission made a number of proposals to reform the Fatal Accidents Act. One of those proposals was that the eligibility for bereavement damages be extended to cover co-habitees of the deceased of more than two years. The proposal was endorsed by the Government and included within the Civil Law Reform Bill 2009, which unfortunately did not progress to enactment.
The question that still remains unanswered is: should bereavement damages be considered in any way equivalent to the loss suffered? If so, what amount would ever be considered sufficient? During the Parliamentary debate preceding the introduction of bereavement damages into the Fatal Accident Act, the Government acknowledged that it was impossible to quantify the value society places on life. Bereavement damages could only therefore be a "token payment" acknowledging the dependants' grief and should not be regarded as reflecting the value of the deceased's life. Neither should they be considered as a punishment for the wrongful act of the person who caused the death.
I will be interested to see whether any action will be taken following APIL's survey.
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