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Thursday, 27 April 2017

Looking back at years of injustice for the bereaved

On Friday 28th April I will hang up my billing shoes. My fee earning days will be done as I move on to a new phase as a practice management consultant and trainer.

At times like, this you look back over the years and reflect on significant moments.

I can still remember a day in the 1980s when I came across a moment of injustice which still angers me to this day. I was instructed by the parents of a young student who had been tragically killed in a car accident. He was a passenger in a car driven by his friend and which crashed into a wall. No other cars were involved and his friend, who survived, was clearly at fault. At one level it was a clear cut case on liability.  

The injustice arose when we discussed the likely award of damages. The parents were clearly devastated. The son was 18 years and a few weeks old. I had to advise them that they were not entitled to any damages for their bereavement. That was my earliest encounter with the scandal that is the law of bereavement damages in England and Wales, which can lead to major injustice. And this injustice has never been properly resolved in all of my years in practice.

The entitlement to damages for bereavement dates from the Fatal Accidents Act 1976. It is a statutory entitlement to a fixed sum – currently £12,800.00. If that sounds shockingly low, there is worse to come. 

The only persons entitled to an award are a surviving spouse/civil partner or the parents of a child under 18 and they can only receive a single award – i.e £12,800 between them. do they share the pain of loss 50/50? This was why the parents in my case were not entitled to anything for their obvious bereavement; because he was marginally over 18. Nobody has ever properly explained to my why this arbitrary fact somehow lessened their bereavement.  Children who lose a parent, apparently do not suffer any bereavement that can entitle them to any damages. Siblings have no chance. 

There is no immediate sign of this changing.

The limiting of the award to an arbitrary figure has always been illogical and unfair. 

I once acted for the father of four young girls who lost his wife due to the admitted negligence of her local hospital. He was a devoted husband and father. I have rarely come across such a level of grief. He could barely discuss the case without dissolving into tears. He was suffering from a very high degree of pain and upset that surely deserved realistic compensation.

The time has come for all of this to change.

The Association of Personal Injury Lawyers is currently heading a major campaign on this very topic –

In Scotland, loved ones are treated with far more dignity. A broad range of relatives can claim - spouses/civil partners, parents/children, siblings, grandparents/grandchildren. Damages are assessed on a realistic basis having regard to such matters as the level of grief and sorrow suffered. Most importantly, there is no statutory cap.

Why victims south of the border cannot be treated with equal sympathy beggars belief.

We will see many promises from politicians over the next few weeks. 

A promise to ensure justice for those who suffer bereavement would be very welcome and is long long overdue…

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