Following a fatal accident, bereavement damages can be claimed on behalf of the deceased’s Estate from whoever has negligently caused the death.
In England and Wales, a claim for bereavement damages, however, is strictly limited. It can only be claimed by the spouse of the deceased or if the deceased was under 18, by their parents.
These restrictions have been the subject of much criticism. They prohibit a child for example being entitled to claim for the loss of a parent and parents cannot claim for the loss of a son or daughter if they were 18 or over at the time of death.
The situation in England and Wales can be contrasted with the system in Scotland. The Scottish system for bereavement damages allows a wider pool of relatives to claim damages.
In addition, the Scottish system considers the values of each case on its merits.
In England and Wales, a fixed amount of damages is awarded for bereavement and the figure as it presently stands is currently £12,980.
A study that was commissioned by the Association of Personal Injury Lawyers (APIL) showed that 80% of those interviewed considered the Scottish system for bereavement damages to be much fairer and it has prompted calls for the law in the rest of the UK to be reviewed.
The majority of those surveyed also believed the sum fixed in England and Wales was not high enough and 57% felt a figure of more than £100,000 was appropriate as opposed to £12,980.
Many of those surveyed also believed that the list of people should be eligible to seek damages, should be extended to include for example the parents of a child who is killed regardless of the child’s age, children including adopted children, regardless of the child’s age, the co-habitee of the person killed and the fiancée of the person killed.
None of these people are currently eligible for bereavement damages in England and Wales although most of them are entitled to claim damages in Scotland.
Mark Ellis of Tilly, Bailey & Irvine says whilst everyone knows that nothing can replace a loved one who has died, it is important to remember we are talking about bereavement caused by the negligence of another party.
The fact that the death is needless can only increase the sense of pain and loss.
In Scotland cases are taken on their merits, damages are generally higher and the law is much more flexible about who can receive them.
It is distasteful to him that parents of a child under the age of 18 are entitled to bereavement damages but once that child is 18 they are not.
It is extremely difficult for him to explain to a bereaved husband or wife that they are only entitled to £12,980 for the loss of their spouse.
It is even more difficult to inform a parent who has lost a child that they cannot claim anything at all if a child was 18 or over.
The current system is just unfair. Hopefully calls for the system to change to be on a more reasonable and even footing to that of Scotland will hopefully happen soon.