Comment: Fatal accidents – cheaper to kill than injure?

Written by Fletchers Solicitors’ Trainee Lawyer, Daniel Marshall

There is quite a common misconception in society today that when a life is lost, because of another’s negligence, the family of the deceased are likely to receive a substantial pay out where the liable party is insured. Surely, the most valuable thing to a human can be their life, so equally the law should reflect that. Whilst it is difficult to put a price on a life, it could be argued that the current legal framework for fatal accidents in England and Wales is totally out of date, unjust and unfair. Whilst the law provides for a bereavement award, the scope of this is extremely limited both in monetary terms and to those who may be of benefit.

The only real value arising out of a fatal accident stems from dependency, where this is absent the value of a claim is significantly lower and could be argued to be massively out of line of what society would deem fair. This piece will investigate the bereavement award and claims lacking a dependent with a view to assessing whether the law is sufficient and fit for purpose. I will also consider the perspective north of the border in Scotland, where there is no statutory limit on bereavement compensation and whether their legal framework could be paving the way for fairer conclusions of fatal accident claims.

Fatal accidents in England and Wales are predominantly governed by the Fatal Accidents Act 1976 (FAA) and the Law Reform (Miscellaneous Provisions) Act 1934, the legislation for bereavement being in the former of the two under s.1A. The provisions of S.1A allow for a set award of £12,980 to be claimed following the death of a person by either the deceased’s spouse or where the deceased was a minor, i.e. his parents. Even upon first reading of the statute it is apparent that this legislation is extremely narrow and does not reflect the ever-changing dynamics of a modern society.

Clearly, a considerable amount of people will slip through the gaps should they not fall within the rigid definition of a nuclear family which the FAA is aimed towards. Questions are posed whether a child should be entitled to this award, unmarried partners, siblings of the deceased, and even parents where a deceased child is over 18. Quite clearly an award that is meant to reflect the loss of a family member should extend to a wider range of the deceased’s relatives, rather than just a spouse or parent. The FAA is exclusionary and strict, for an act that should be looking to ensure a family is able to cope and move on following the loss of a loved one it is the complete opposite. The range of applicable persons is too narrow in scope and does not achieve its purpose in respect of compensating those who have lost a loved one.

The bereavement award also comes under quite substantial criticism when it comes to its value. Whilst the courts are reluctant to put a price on a life, surely a sum of just under £13,000 is in no way reflective of this. The truth of this issue can be seen when looking through the Judicial College Guidelines to value a Claimant’s injury in other Personal Injury claims. Where in a fatal accident case a Claimant will receive £13,000 for the loss of a loved one, another Claimant is entitled to receive a figure of around the same benchmark for the loss of a finger following an accident. The argument that it is cheaper to kill than to injure quite clearly has some merits based on this worrying comparison. What makes this worse is that the bereavement award is split between those applicable, so where a minor child has been killed each parent would receive a 50% split of the total bereavement award rather than an award per person. On top of this split a Claimant may then be forced to pay legal and probate costs to bring the claim. After all these further deductions one would certainly ask whether bringing the claim was worth all of the additional stress.

Whilst the law for fatal accidents in England and Wales is worthy of criticism, this is not the case for other parts of the UK, particularly north of the border in Scotland. The Scottish system could be argued to be paving the way for dealing with these cases in line with modern society’s expectations. Under the Damages (Scotland) Act 2011 a Scottish court has the power to order whatever sum they deem reasonable for a ‘loss of society’ for each ‘immediate family’ member affected by a fatal accident. In practice, this means that a spouse, cohabitant, child, parent, sibling or grandparent will all be entitled to damages to compensate them for their loss. This award looks to cover grief, stress and lost benefits following the death of a family member. Quite clearly this is a wider bracket than that available under the FAA in England and Wales. The wider scope under Scottish legislation gives a fairer result in ensuring that most of the family are acknowledged and entitled to remuneration.

Not only this, but recent case law for a claim for ‘loss of society’ has shown that awards of this kind can be for a considerable sum. In Young v Ministry of Defence a mother was awarded £90,000 and a sister awarded £60,000 for their loss of society claims following a fatal accident. In the very similar case of Robert Dicketts v Advocate General each parent was awarded a sum of £100,000 for their loss of society claims.

Due to differences in the law, civil cases in Scotland can be heard by a jury if the parties wish. In both of the above cases this occurred, and it was the jury that made the final determination on the figures each family member would receive in damages. Whilst a jury could be argued to be more sympathetic they are also a lot more in tune with the views of the public and it would suggest that these figures are what everyday society would deem fit in these situations. Recent guidance on these awards has been given[1] following the case of Hamish Stranger and Others v Flaws & Proctor which suggested that these awards should be considered by the jury as follows:

Loss of a spouse/life partner              £100,000 – £120,000

Loss of a child                                     £80,000 to £100,000

Loss of a parent                                  £35,000 to £50,000

Loss of a grandparent                         £14,000 to £20,000

Quite clearly there is a considerable difference in what can be recovered north of the border but there is a strong argument that these awards are a lot closer in line with what the public expects of the law should these situations arise. The issue is also strengthened by looking at the award in Northern Ireland, which at present stands at £14,400 as well as a pledge to ensure this is increased every 3 years. In keeping with this thought APIL’s research into these cases[2] found that over 80% of the public believed that bereavement damages should be above £15,000 and 57% of the public believed that the level should be over £100,000. So surely if this is the view of the public which is also being confirmed via juries in Scotland, why is it that England and Wales are so far behind what is expected?

Clearly, fatal accident legislation is not at the forefront of the Government’s mind in the current political climate but there is a growing need for change within this area. Attempts need to be made to ensure that families are not facing double the amount of injustice of losing a family member and then not being adequately compensated for it.

---

[1] R Milligan QC, “Hamish Stanger v Erland Flaws: squaring the circle between awards by judges and juries”

[2] APIL – Bereavement Damages Research November 2013