Thomas Mitchell

Their stark differences are most prevalent when it comes to the assessment of damages in fatal accidents awards. In Scotland, under the Damages (Scotland) Act 2011, there are two types of awards: loss of support, based on financial dependency and loss of society, which compensates for the grief and loss of a relationship. A wide group of relatives can claim in Scotland: spouses, siblings, parents, grandparents, civil partners, etc. Focus is very much on the deceased’s immediate family and closeness of the relationship to the deceased. 

In England, dependency claims take the place of loss of support claims and bereavement damages take the place of loss of society claims. There is a more restricted class of relative who can claim. For example, siblings under English law cannot bring a bereavement claim. 

So, what is the value of a life? Whilst no amount of compensation can even hope to properly qualify the loss of a close familial relationship, the sum entitled relatives can claim in England, according to the Fatal Accidents Act 1976, is fixed at £15,120. In Scotland, there is no fixed amount and judicial or jury discretion is the barometer. Awards for parents trend towards the £100,000+ mark, children £80,000+, siblings £20,000+ and grandparents £10,000+. But remember, there is no upper or lower limit, and the focus is very much on the relationship that existed with the deceased. In Scotland, an assessment of damages is done on a case-by-case basis and the approach is tailored to the individual circumstances. In England, a ridged out of date statutory regime is applied and the bereavement award is not tailored to the individual circumstances.

The problem with polar opposite approaches to these awards north and south of the border is that it creates an opportunity for exploitation. An attraction exists for insurance companies and others faced with defending such claims, and the lawyers who represent them to find a way to have English Law applied to fatal accidents which occur in Scotland. An insurer can save thousands on the cost of fatal claims if such an argument succeeds. For the grieving family, it means protracted litigation and uncertainty at a time when they are bereaved and should be supported.

There have been calls for urgent reform. The Association of Personal Injury Lawyers (APIL) continues to campaign against “token“ bereavement damages in England and Wales calling for the Scots law approach to be mirrored throughout the UK. There surely cannot be any valid reason why a UK bereaved family member is treated so differently depending on locus or residency. This issue is unlikely to go away anytime soon, but with modern family life being more diverse than ever before, perhaps it’s time for England to “get with the times” when it comes to bereavement awards.  

Thomas Mitchell is a partner at RTA LAW LLP