Bereavement damages: A move in the right direction

When someone dies as a result of negligence, a small category of people are entitled to claim a statutory bereavement award under the Fatal Accidents (Northern Ireland) Order 1977. Bereavement damages have received a lot of criticism firstly for the very low award and secondly for the small category of people able to claim.

The Northern Ireland Department of Justice has announced that the amount of statutory bereavement damages will increase from £14,200 to £15,100 from 1st May 2019. Whilst this is a move in the right direction and a higher rate than if the Plaintiff died in England or Wales where the sum is only £12,980 nevertheless the award is still relatively frugal. Scotland have a much fairer system where sums are calculated on a case by case basis.

The legislation on bereavement damages

Association of Personal Injury Lawyers (APIL) commissioned consumer research in 2013 to discover public attitudes to bereavement damages. Of the 2,000 people surveyed, more than half thought bereavement damages should be more than £100,000; nearly three-quarters thought bereavement damages should be awarded on a case by case basis and, when told the level of damages available for a seriously injured thumb (between £14,000 and £25,000 at the time of the survey) almost three-quarters of respondents thought damages for the grief and trauma associated with a bereavement should be higher.

Under the legislation only the following people are able to claim for a bereavement award:

• The husband/wife/civil partner of the deceased
• Married parents of the deceased if the deceased was a minor
• The mother of the deceased if the deceased was a minor and the parents are unmarried.

With more couples choosing not to get married, cohabiting for several years and have a family together it seems unjust to deny them the right to claim bereavement damages. Thankfully the Court of Appeal has changed this position with their decision in the case of Smith v Lancashire Teaching Hospitals [2017] EWCA Civ 1916. Whilst the Fatal Accidents (Northern Ireland) Order 1977 has remained unchanged, it is hoped that the decision will encourage defendants to pay bereavement damages to unmarried cohabitees. To potentially qualify they should have been cohabiting for two years and the surviving partner having relied on the deceased to contribute to household bills and expenses.

Whilst there has been a move in the right direction, the law on bereavement damages is still desperately out of touch.

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