In Scotland, the compensation which is payable to relatives for the loss of a loved one as the result of the fault and negligence of another is governed by the Damages (Scotland) Act 2011, s.4.
In terms of this provision, spouses/civil partners, parents/children, siblings, grandparents/grandchildren (and those treated by the deceased or treated the deceased as such members of their households) are entitled to claim for:
(i) their distress/anxiety at the deceased’s suffering before his/her death; and
(ii) their own grief, sorrow; and
(iii) the loss of such non-monetary benefit as the relative might have been expected to derive from the deceased’s society and guidance if he/she had not died.
Children in utero at the time of their sibling’s, parent’s or grandparent’s death are also able to claim.
There are no fixed statutory limits on the compensation payable in Scotland. Cases are considered on their own individual merits. The nature (strength and length) of the relationship which existed between the deceased and his/her relative is taken into account, as is evidence of the emotional and psychiatric impact of the loss on the surviving relative and the respective ages of the deceased/surviving relative.
There has been a lot of case-law generated in Scotland in the last 4 or 5 years concerning the level of damages which should be awarded to the various categories of relatives. The over-arching aim is to achieve, in each case, an award which is “just”, although it is recognised that no amount of damages can ever make up for the loss of a loved one.
As examples, there have been recent awards of up to £80,000 for widows, up to £35,000 for adult children, up to £30,000 for siblings, up to £86,000 for parents and between £2,500-£18,000 for grandchildren. Each qualifying relative is entitled to compensation in their own right.
The story, however, is very different and somewhat bleaker elsewhere in the UK.
In England and Wales, statutory damages are available under the Fatal Accidents Act 1976 s.1A. They are presently capped at a maximum of £12,980. Bereavement damages can only be claimed in England and Wales by:
- a spouse/civil partner of the deceased, or
- where the deceased is an unmarried minor at the date of death (i.e. below the age of 18 in England & Wales) (a) by both parents if their child was legitimate or (b) by the mother only if the child was illegitimate.
Where both parents claim, the £12,980 is divided between the parents (i.e. each receives £6,490). Parents cannot claim bereavement damages for a child injured whilst under 18 but who dies after the age of 18 as a result of these injuries.
So, the seemingly illogical and ludicrous situation arises that a parent can claim for the loss of a child who dies at 17 years and 364 days of age, but are denied the right to be compensated for their loss if he dies the following day, when their sense of loss cannot, on any view, be said to have diminished.
Further, a child cannot receive bereavement damages for the loss of a parent in spite of the fact that their principal carer/guide/mentor has been taken away from them prematurely.
In Northern Ireland, the Fatal Accidents (Northern Ireland) Order 1977, s3A applies. This scheme is almost identical to that in England & Wales but the sum recoverable is currently fixed at £11,800. This sum, too, can be reduced if there is any finding of contributory negligence on the part of the deceased. After a recent consultation process, however, the Department of Justice in Northern Ireland has announced that this sum will be increased to £14,400.
As you can see, something of a postcode lottery has arisen whereby bereaved relatives of those killed in Scotland are treated much more fairly and favourably than those who tragically lose their lives south of the border and across the Irish Sea. Outwith Scotland, the view seems to be that “bereavement damages” are just a token payment in acknowledgment of the grief caused by the death and is not intended to reflect the value of the person’s life or as a penalty to be paid by the negligent party. However, the reality is that they do play some part in providing some recognition of the awful loss inflicted upon a family by the needless acts or omissions of another.
As Scottish legal practitioners, the sums that are awarded for “bereavement damages” elsewhere in the UK appear staggeringly low and limited to such a small category of relative that they hardly seem to go any way in addressing the unnecessary loss of life and widespread grief caused by someone else’s negligence.
Many of our clients consider that even the sums payable in Scotland are insultingly low but are horrified to learn how little they might have received had their cases been assessed by the English, Welsh or Northern Irish courts. A life is worth no less because it was lost in London, Cardiff or Belfast than if it was lost in Edinburgh.
If you have lost a relative as the result of the fault and/or negligence of another and court proceedings can be raised in Scotland (based on the law of the place of the accident), it is in your interests to seek compensation in Scotland whilst the level of damages available in Scotland far outweighs those recoverable elsewhere in the United Kingdom.
Our Litigation Team have the experience and skill to assist you in securing the maximum compensation to which you are entitled.