APIL is campaigning hard for an increase in the scope and availability of bereavement damages in England, Wales, and Northern Ireland.
The law remains largely unchanged since it was enacted 40 years ago and is out of touch. There has been the inclusion of some cohabiting unmarried partners, but eligibility remains alarmingly narrow.
As some readers may know, bereavement damages are currently available only to spouses, cohabiting partners, and the parents of a minor (or, if the parents were unmarried, the mother only).
It is worth spelling out that this excludes some of the closest family ties imaginable. Those excluded from the list include children whose parent is killed, parents of adult children, siblings, and unmarried fathers of minors, to name a few.
Bereavement damages are intended to provide recognition of the grief and suffering experienced by surviving family members affected by a fatal accident. However, it is a complete fiction to imagine that those currently categorised as eligible are, in some way, naturally more bereaved than many of those excluded. The result is a system that ignores most grieving relatives, leaving them to question whether the legal system really cares about negligent deaths at all.
This was highlighted by one of my recent cases, involving the death of Dogan Dervish. Dogan was a much-loved man who left behind many family members: siblings, children, and grandchildren, but no partner. His death had a huge impact on his loved ones, but the family’s claim was limited to reimbursement of their funeral expenses and an extremely modest financial dependency award.
Being a claimant injury lawyer comes with many challenges. Having to explain to a grieving family that the law does not consider any of them to be bereaved is among the toughest. I was extremely fortunate in this case to have an understanding and determined client in Dogan’s daughter, Sabiha, who understood the position and felt compelled to try and bring about change; not for her own sake, but for future brothers, sisters, sons, and daughters. Sabiha has been playing a key role in recent months in helping to push APIL’s campaign, including attending parliament to talk with MPs about the state of the current system and how it let her family down. You can watch a short film featuring Sabiha here. Please share the video if you can on your social media channels, to help highlight how the law is out-of-touch.
So, if the current system is not fit for purpose, what is the alternative? One need not look very far for a jurisdiction that handles bereavement damages in a much more meaningful way. In Scotland, bereavement compensation is considered on a case-by-case basis for a much wider range of relatives, looking at the familial relationships and coming to reasonable, considered decisions as to which family members are eligible. If Dogan’s case had arisen in Scotland, it is highly likely that a number of his relatives would have been considered eligible for bereavement damages.
Whilst discussing this in parliament, I heard some MPs question whether this would be overly intrusive, but in my experience, it is rare for families to have concerns about that element of the investigation, so I do not accept this as a legitimate concern. Conversely, I find that families are keen to express just how much their loved one meant to them.
Ultimately, there are few, if any, who could argue with a straight face that the current system is fit for purpose. Our challenge is to increase awareness of the issue in order to push it up the political agenda. Once it is debated in Parliament, the need for change will surely be recognised.
APIL are working hard to push this message, but the fact is that politicians are not particularly interested in what the lobbyists, or us lawyers, have to say. However, when faced with a family member like Sabiha, they listen. More case examples and brave claimants like Sabiha would be an enormous help in bringing about the change that is so long overdue.
For a more detailed analysis, see APIL’s excellent 2021 report on bereavement damages entitled Bereavement Damages: A Dis-United Kingdom.