Bereavement damages

Scotland leading the way on justice for bereaved relatives

Money can never truly compensate the loss of a loved one. But in cases where a person has died from injuries suffered in an accident or due to illness, and where compensation is due, there is still some reassurance to be taken from the knowledge that Scotland leads the way in the UK when it comes to awarding bereavement damages to bereaved relatives.

When a person dies as a result of injuries in an accident, or illness, there are a number of different categories of bereavement damages that can be claimed. For example, a spouse (or other financially-dependent relative) can claim for loss of financial support arising following the death. One of the categories of compensation which can be claimed following the death of a person is for the grief and other emotional responses experienced by relatives due to the death. In England and Wales, this is called a “bereavement award”. In Scotland, this category is still often referred to by its former name of “loss of society” award. In Scotland, the award is designed to compensate the relative for: distress and anxiety felt by the relative in contemplation of any suffering experienced before the death; grief and sorrow; and the loss of “society” and guidance of the deceased.

Scotland leads the way on this, and campaigns are under way in other parts of the UK for their legal systems to catch up with Scotland’s.

What are the differences in bereavement damages between Scotland and England & Wales?

The differences are huge, both in terms of the amounts typically awarded and the categories of relative who are entitled to claim.

Who can claim this type of award?

The classes of relative entitled to seek such a bereavement award in England are extremely limited. It is limited to: a spouse or civil partner; parents of children under the age of 18; or a cohabitee of at least two years. That means no entitlement for: a child who loses a parent; and parent who loses a child over the age of 18, a sibling, a grandchild or grandparent.

In contrast, the classes of relatives who can claim the equivalent award in Scotland are much wider. A claim can be made by: a spouse or civil partner, or a person who had been living with the deceased as if married to or in civil partnership; a parent of the deceased; a child of the deceased; a sibling, a grandparent; and a grandchild.

How much can be claimed?

In England and Wales, the sum paid for a bereavement award is fixed. The current level of £15,120 was set in May 2020 (prior to that it was just under £13,000).

In Scotland, there is no fixed sum for any relative. The awards from the courts have tended to be substantially higher. Crucially, the courts take into account the specific relationships in each case. A number of factors are taken into account, including the age of the deceased and the age of the relative claiming. The Scottish courts look at the particular relationship the relative had with the deceased. It is common for a spouse to be awarded more than £50,000 for this category of compensation alone. Adult children of a person who has died are often awarded sums in excess of £30.000.

It should be said the Scottish courts tend not to treat members of the same class of relative differently. Were they to do so, this could create divisions within families. However, in cases where the evidence clearly points to a justification for doing so, the Scottish courts do take into account particular characteristics that may exist in a family. In one Scottish case in recent years, the court made a higher than usual award to one of the grandchildren of the deceased. The father of that grandchild was not part of the grandchild’s life and the grandfather (the deceased) had formed a particularly close bond, taking in the role of father figure as the grandchild grew up. The court recognised that in calculating the level of award for this category of damages.

What campaigns are ongoing?

Many campaign groups in England and Wales are campaigning for the law on bereavement damages in England and Wales to be reformed to match more closely the law in Scotland. The Association of Personal Injury Lawyers (APIL) has continued to lobby MPs to challenge the UK Government’s refusal to reform the law down south. APIL reports that the UK Government has described bereavement awards as a “token award”. That view is continually, and rightly, challenged and the campaigners in England and Wales righty point out the lack of fairness in this “postcode lottery”. Campaigners regularly point to the law in Scotland as being a system which has got it right.

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