Law Amended so Co-habitees Can Claim Bereavement DamagesPublished on: 07 October 2020
When a close relative dies in circumstances where a civil action can be brought, the law is governed by the Fatal Accidents Act 1976. This Act specifies the categories of relatives who can bring claims for bereavement damages and loss of financial dependency. The statute already allowed co-habitees to bring claims for financial dependency, however bereavement damages were only permitted for a surviving husband or wife or civil partner.
In the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others the Claimant Ms Smith and Mr Bulloch lived in the same household as man and wife for a period of 11 years prior to his death. They never married and it was accepted by the court that the relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.
Mr Bulloch died as a result of the admitted negligence of the Defendant Hospital Trusts. Because the Fatal Accidents Act did not cover a claim for bereavement damages for a co-habitee the Secretary of State for Justice was joined as a Defendant on the basis that the government had failed to enact law that was compatible with the European Convention on Human Rights. As a result of Ms Smith’s case the Judge found that the Fatal Accidents Act was incompatible with the European Convention by excluding two years plus co-habitees. However the Judge was unable to award damages leaving Ms Smith with a claim to the European Court of Human Rights.
I have long been a critic of the amount of the award of bereavement damages which is currently fixed by law at £15,120. The award falls towards the upper end of the bracket for simple fractures of the forearm. I am pleased, however, to note that following the Smith decision, parliament has just passed legislation, which will mean that co-habitees will be able to claim bereavement damages for claims arising from deaths from 6 October 2020.
It is necessary for the co-habitee partner to prove that they:
- were living with the deceased in the same household immediately before the date of death; and
- had been living with the deceased in the same household for at least two years before that date; and
- were living during the whole of that period as the wife or husband or civil partner of the deceased.
Cases involving co-habiting partners can be complicated if there have been periods apart and each case also needs to be carefully considered on its facts. I hope that this change in law will assist bereaved partners to at least have some recognition of their bereavement in those circumstances.
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