Fatal claims for loss of a loved one – Scotland and England – same isles, different damages

When choice of jurisdiction is an option when advising a client, understanding the advantages and disadvantages of the relevant locations is important. Scotland can not only be an important factor for financial settlement on divorce (see Paul McCartney and Heather Mills) but also when deciding where to pursue a fatal claim for loss of society following the death of a family member as a result of medical negligence or personal injury.

Fatal claims in Scotland

In Scotland, the legal framework for fatal claims is generally more generous and pursuer/claimant-friendly compared to England, particularly when it comes to compensation for loss of society. Under the Damages (Scotland) Act 2011, close relatives of a deceased person—such as spouses, children, siblings, and even grandchildren—are entitled to make a claim for loss of society, which reflects the grief and loss of personal relationship suffered as a result of the death. The Scottish courts have shown a greater willingness to recognise the emotional impact of bereavement and often award higher sums than those typically granted in England. The system also allows a broader range of relatives to qualify than in England, acknowledging the value of extended familial bonds in a way that English law does not.

Fatal claims in England

In contrast, the English approach under the Fatal Accidents Act 1976 is far more limited and rigid. The bereavement award—which is the closest equivalent to Scotland’s loss of society—applies to a narrow category of relatives and is capped at a fixed statutory amount (from 2020 the limit was £15,120). This cap does not account for the depth or duration of the relationship, unlike in Scotland. Additionally, English law offers less flexibility in recognising complex family structures, which can exclude significant relationships from compensation altogether.

We are here to help

If you have any queries relating to a claim for loss of a loved one in Scotland, our Medical Negligence and Catastrophic Personal Injury teams are very well placed to assist. Please contact us here or email robbie.wilson@andersonstrathern.co.uk if you have any questions on this topic.