Fatal accident compensation awards chasm

Why bereaved families face a legal lottery depending on where a loved one dies.

Even after the Act of Union in 1707, Scotland and England maintained separate and distinct legal traditions. Over the centuries that have passed since, Scots Law and English Law have evolved differently. The mixed legal system of Scotland combines elements of civil law and takes influence from the Roman Empire and Common Law elements. English Law, on the other hand, was historically a Common Law system, developed through years of judicial decisions, rather than Statutes. In the modern era, both systems now find the most authoritative law in the form of Statutory Legislation, comprising of Acts of the respective Parliaments north and south of the border.

These stark differences are perhaps most obvious 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, step relatives. 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 that can claim. For example, under English Law, siblings cannot bring a bereavement claim.

So, what is the value of a relationship? Whilst no amount of compensation can ever hope to properly quantify the loss of a close familial relationship, under the English Act (Fatal Accidents Act 1976), the sum entitled relatives can claim 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, siblings £50,000 and grandparents £25,000. 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 In England, a ridged out-of-date statutory regime is applied and the bereavement award is not tailored to the individual circumstances.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. For example, a scenario could arise that a road traffic accident which occurs in Scotland results in the death of an individual. The deceased leaves behind a wife, 2 children and 3 siblings. If the family were close, you would expect an award for the deceased wife to amount to £100,000, the children’s claims may be £80,000 each and the three siblings claims £45,000 each. The total of the bereavement award in such a case would amount to £395,000. If English Law was applied to the same scenario, then the total award would be just £45,360. An award of £15,120 for the deceased wife and the same for each of the children. The siblings would have no right to claim, according to English Law.

The attraction in having English Law apply to any fatal accident which occurs in the UK is obvious to those who are tasked with defending these claims, chiefly insurance companies. If a legal argument can be crafted to apply English Law to an accident which occurs in Scotland, then the insurer can save tens of thousands on the cost of claims. That argument was made in the case of Haggerty-Garton & Others v Imperial Chemical Industries Limited [2021] EWHC 2924 (QB). The case involved the Executor and family of the deceased, David Haggerty, bringing an action on the basis that he had been negligently exposed to asbestos dust in the course of his employment with Imperial Chemical Industries in one of their factory premises in Scotland during the 1970s. The claimants, including the deceased’s widow, children, stepchildren, sister and grandchild, pled that the law applicable to the claim was Scots Law, specifically the Damages (Scotland) Act 2011. They argued this on the basis that the harmful event took place in Scotland. At first, the defendants denied exposure to asbestos dust and argued that the recoverability of any loss should be governed by English Law under the provisions of the Fatal Accidents Act 1976. However, prior to the trial, the defendants conceded liability, admitted that Scots Law applied to the quantification of the claim and that the family members were entitled to make claims for loss of society (the Scottish equivalent of English bereavement damages).

Since this decision, insurers and the lawyers who represent them have sought ways to have English Law apply to Scottish fatal accidents via backdoors and legal loopholes. This leads to increased litigation rates, increased costs and more heartache for grieving families in the middle of it all.

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 Scottish 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 – Partner at RTA LAW LLP