In this day and age it may seem incredible to think that the criteria for determining who can receive bereavement damages following a fatal accident depends largely on marital status and, in the case of children, legitimacy.
However, bringing a claim for bereavement damages is strictly limited under the Fatal Accidents Act to the deceased person's spouse, civil partner or parent (if the deceased is an unmarried child under the age of 18). Furthermore, if a deceased child is 'illegitimate', only the mother is entitled to claim.
This means you cannot bring a claim if:
- You are a child of the deceased
- You are a cohabitee of the deceased i.e. you were not married nor were you in a civil partnership
- Your child is under 18 at the time of their accident but reaches 18 before they die from their injuries
- You are the father of a deceased child but are not married or in a civil partnership with the mother.
Following a successful legal challenge in 2017, legislation is proposed to enable cohabitees to claim - although this has not yet been implemented and even then it will restrict entitlement to those who have cohabited for at least two years prior to the deceased's death.
Failing to recognise the entitlement to bereavement damages of those who choose not to formalise their relationships is being viewed as both archaic and arbitrary. Likewise, the amount that can be claimed, even by those entitled to do so, is capped at £15,120 from 1 May 2020, an increase from the previous £12,980. This can be small recompense for the grief caused when a loved one passes away in a fatal accident. By contrast, in Scotland damages are not capped (with some awards being nearly 10 times the maximum amount in England) and are assessed on a case by case basis.
In early 2020, the Association of Personal Injury Lawyers (APIL) raised these issues with the government, pressing for a thorough review of bereavement damages. However, the government has so far declined to accept such a review is necessary - although the proposed change to the legislation has been debated this week in the House of Lords.
A further obstacle to claiming for bereavement is where, before their death, the deceased brought and settled a personal injury claim for damages arising from their accident. This effectively extinguishes the right to claim for bereavement damages. It is therefore important to seek the right legal advice to ensure the entitlement to bereavement damages in the event of their death is not excluded by any personal injury claim they bring in their own right.
As an APIL member we have experience of being able to legally support families involved with fatal accidents. If you would like to discuss your circumstances on a free no obligation basis please contact us on 0800 731 8539 or by completing our online enquiry form.