Fatal damages update – a UK and Ireland comparison

On 19 March, the Ministry of Justice (MoJ) announced an increase to the statutory bereavement award in England Wales to £15,120.  This new figure is to reflect inflation since the award was last increased to its current level of £12,980 in April 2013.

Although a long overdue increase, it highlights the divergence of fatal damages awards across the UK and Republic of Ireland.

Impact of differences to fatal damage awards

Example: A male deceased, aged 45, killed in a car accident.  He is survived by his widow (45), two children (13 & 15) and his parents (69 & 70).

In England and Wales, only the widow will recover statutory bereavement damages.  The same is true for Northern Ireland.  In Scotland and the Republic of Ireland, however, all of the above surviving relatives will recover bereavement damages as the table below illustrates. 

 

Country

Entitled relatives

England & Wales

a)the wife, husband, or civil partner of the deceased;

b)the deceased’s partner, if cohabiting for 2 years or more;

c)parents, where the deceased is a ”legitimate”; or

d)a mother, where the deceased is “not a legitimate” minor.

Northern Ireland

a)the wife, husband, or civil partner of the deceased;

b)the deceased’s partner, if cohabiting for 2 years or more;

c)parents, where the deceased is a ”legitimate”; or

d)a mother, where the deceased is “not a legitimate” minor.

Republic of Ireland

a)the wife, husband, or civil partner of the deceased;

b)the deceased’s partner, if cohabiting for 3 years or more;

c)parents of the deceased (including step-parents and those in loco parentis);

d)children of the deceased (including step-children);

e)siblings (including half siblings)

f)a person whose marriage to the deceased has been dissolved by decree of divorce.

Scotland

a)the wife, husband, or civil partner of the deceased;

b) the deceased’s partner, if cohabiting immediately before the death;

c) parents of the deceased (including step-parents);

d) children of the deceased (including step-children);

e) siblings (including half siblings and those brought up in the same household);

f) grandparents of the deceased (including step-grandparents); and

g) grandparents of the deceased (including step-grandchildren).

As well as the lengthy list of entitled relatives, two further legal distinctions have led to claims in Scotland being considerably more expensive for insurers then elsewhere.

First, there is no statutory figure. In England the award is fixed at £15,120 and is awarded to one surviving relative, or split between the parents.  The same is true for Northern Ireland, where the figure is slightly lower at £15,100. In the Republic of Ireland, the award is capped at €35,000 – currently around £32,000 – to be shared amongst the relatives who claim.  In Scotland the figures are awarded or agreed with reference to case authority, and there is no pot from which the figures must be drawn – each relative is entitled to a separate figure.

Second, as awards are decided in court it must be remembered that civil jury trials are a feature of the Scottish jurisdiction.  They are used most frequently in fatal damages cases, where in the main juries tend to be sympathetic to surviving families. 

The illustrative figures below are based on likely awards for a judge sitting alone, but although guidance is given to the jury by the judge, juries have frequently awarded up to double without challenge or appeal.

Returning to the above scenario, therefore, the following provides a stark illustration of the relative cost to insurers across these jurisdictions:

Surviving relative

England & Wales

Northern Ireland

Republic of Ireland

Scotland

 

Widow (45)

£15,120

£15,100

£8,000

£85,000

Child (13)

£0

£0

£6,000

£35,000

Child (15)

£0

£0

£6,000

£35,000

Parent (69)

£0

£0

£6,000

£40,000

Parent (70)

£0

£0

£6,000

£40,000

Totals

£15,120

£15,100

£32,000

£235,000

Comment

It should be noted that although this article focusses on bereavement awards, different discount rates lead to yet more divergence across these jurisdictions when dependency figures are factored in. 

So which jurisdiction has it right?  It is impossible to put a value on the suffering caused by the death of a loved one, but surely the sympathetic approach of a Scottish jury is a reasonable guide to public opinion.  The statutory bereavement awards are not adequate compensation,  nor is the extremely short list of eligible relatives in England, Wales and Northern Ireland.  On the other hand, personal injury damages that come close to any of the awards made to surviving relatives in Scotland would involve a life changing injury to a claimant, and surely that is too high.

A joint approach to a more appropriate statutory bereavement figure across the jurisdictions would be welcomed, but for now insurers must accept the significant difference and reserve accordingly.

This article was first published by Insurance Day on 8 April 2020

Read others items in Personal Injury Brief - June 2020