Bereavement Damages

All too often, when the government announces an intention to change the law relating to personal injury and clinical negligence, it results in claimants being left worse off. It is therefore nice to be able to report a recent announcement that the law is likely to be changing for the better.

Under the Fatal Accidents Act 1976, when a person dies as a result of negligence, either following an accident or clinical negligence, there is a set category of people who are entitled to receive what is known as a bereavement award, which is a set sum of £12,980. Currently the only people eligible to receive this award are the husband, wife or civil partner of the deceased, or if the deceased was a child, the parents of the deceased.

The law therefore does not reflect the realities of the modern world where many people choose to live together without getting married; as such people do not receive the bereavement award.

The case of Smith v Lancashire Teaching Hospitals

This issue came to a head in 2017 when the Court of Appeal considered the case of Smith v Lancashire Teaching Hospitals. This case involved John Bulloch, who died as a result of clinical negligence. Mr Bulloch had lived with Jacqueline Smith for over 11 years prior to his death and their relationship was akin to a marriage in every way, they had simply chosen not to get married.

Court of Appeal decided that excluding cohabiting couples from receiving a bereavement award was in breach of the European Convention to Human Rights (ECHR), as it discriminated against people who chose not to marry. Jacqueline Smith was therefore entitled to compensation from the Secretary of State for Justice because the Fatal Accidents Act 1976 was incompatible with the European Convention on Human Rights. However, she chose not to pursue a claim for compensation; it seems her motivation in pursuing the case was to highlight the unfairness of the law.

The Court of Appeal was able to declare that the Fatal Accidents Act was incompatible with the ECHR, it did not have the power to change it, which is why the government has now acted. The amended wording will now entitle a cohabiting partner to receive the bereavement award providing they were living with the deceased immediately before the death, had done so for at least two years prior to the death and had lived as husband and wife during that period.

Change is very welcome and does make sense as it brings the eligibility for a bereavement award into line with other areas of the law relating to fatal claims. Unfortunately, it will only apply to claims arising from deaths which happen after the order implementing it is made, which is likely to be within the next six to 12 months. However, any unmarried partners pursuing claims currently, or prior to the order being implemented, would have a strong case against the government, in much the same way as Jacqueline Smith.