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The Right to Bereavement Damages?

03/04/2014 13:16 BST | Updated 03/06/2014 10:59 BST

With the Hillsborough inquests re-opened, the distress and grief of the families of fans killed simply going to a football match is on everyone's minds. While it is hoped the bereaved eventually get justice through these inquests, as far as redress through a civil law claim is concerned, many have been disappointed at low levels of compensation for grief and suffering awarded for the loss of a loved one, currently standing at £12,890, even lower at the time of the Hillsborough disaster.

Under civil law for compensation for personal injury in England and Wales, it is possible to make a claim if somebody through their negligence causes the death of a close family member, for example in a car accident. These damages are to compensate the bereaved person for the personal injury caused by the grief and suffering of their loss.

Many believe this £12,890 maximum is simply too low a figure and also unfair in the range of people who can claim. In England and Wales, this compensation can only be claimed by a parent in the event of the death of a child under the age of 18 (if the parents are married), or a spouse. It is not possible to claim over the death of a parent or sibling. Fathers cannot claim over the death of even a young child if that child was born out of wedlock.

To tell somebody undergoing bereavement following the death of their child or spouse that this suffering, which will never go away, is only valued at £12,890, or worse still, they cannot claim as they fall outside the very strict group of people entitled to, is something which no lawyer wants to do, though we do have to, and frequently.

Added to this unfairness is the geographic lottery involved. In Scotland a judge considers the matter on a case by case basis and individual circumstances before deciding on damages. There is no statutory limit on damages for bereavement in Scotland, although common sense is expected to prevail. In practice awards there are often much higher than in England and Wales.

Also, in Scotland, a wider circle of relatives can claim damages for pain and suffering following a death, for example, brother, sisters, and children. In England and Wales, many are shocked to find that they are not entitled to damages following the death of a parent, or a sibling, or a child over eighteen. Many find this barbaric.

Over the years there have been incremental increases in the level of award but the scope and amount has remained limited since the Fatal Accidents Act 1976.

The Association of Personal Injury Lawyers (APIL) is campaigning on bereavement damages, arguing for the law to be changed. It's evident both from their research and my own experience in acting for bereaved clients that most consider the categories too restrictive and the amount awarded too low.

Fundamental questions of social justice and parity arise. If a cohabiting but unmarried couple have children, the man is discriminated against, unable to claim should any of his children from that partnership suffer wrongful death. To any parent, a child is a child whether they are 10 or 30, and the suffering at their death is extreme. Why should parents of a child under 18 be able to claim the bereavement award but the entitlement cease if the deceased is even a day over their eighteenth birthday?

To many, this seems arbitrary. The APIL campaign suggests a judge-led approach akin to Scotland's system. This has advantages but also brings up the difficulty in assessing a loved one's life and the loss of the bereft family. On what basis does a judge make this assessment? If the Scottish approach was adopted in England and Wales, there would need to be clear guidelines.

Clients often say to me that no matter how much is awarded no monetary value indicates the level of their loss. This is entirely reasonable and an argument for retaining the current system. The amount is too low, but it is not intended as a replacement for a loved one; more a token recognition that the negligence of another has caused the loss, while recognising the grief and trauma associated with losing a loved one.

Many bereaved people see the level of the award as another injustice and an insult to the memory of their loved one. Many do not understand that the amount is set by statute and it is not someone's assessment of what is appropriate in the circumstances.

Whatever course the government takes, any changes to law will not alter or lessen the grief the bereaved suffer. However if the categories are extended and the amount increased (with careful guidance on how to approach the assessment) it would better enable those left behind to feel they could do something worthwhile in memory of their loved one.

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