Continuing need for change in law regarding bereavement damages for couples living together

In 2016 I highlighted the need for reform of the law on statutory bereavement damages in England and Wales, which is long overdue.

At present, in the event of the death of a loved one due to another’s negligence, a dependent of the deceased can bring a claim under the Fatal Accidents Act 1976. This can include a claim for loss of their dependency on the deceased, both financial and service dependency, for example, loss of the deceased’s income, pension and services they provided, together with funeral expenses.

In addition, the law in England and Wales provides that statutory bereavement damages in a fixed sum of £12,980 can be claimed, but only by a limited category of dependants, namely:-

• The husband, wife or civil partner of the deceased
• The deceased child’s parents, where the deceased was a minor (under the age of 18 at the date of death) who was never married or had a civil partnership (or only the child’s mother if the deceased child was illegitimate)

This outdated restriction on the category of dependant who is entitled to bereavement damages means that many people are unable to claim such an award upon the negligent tragic death of their loved one, which often leaves them struggling financially, whilst trying to cope with their grief. For example, a child cannot claim bereavement damages for the death of a parent, despite clearly being dependent on them, a parent cannot claim bereavement damages for the death of a child over the age of 18, despite the devastating impact of losing a child of any age, and cohabitees cannot claim bereavement damages for the death of their partner, even if they have been living together for many years.

In Scotland, a wider category of individuals can claim bereavement damages and the level of bereavement damages is not fixed but is assessed on the individual facts of a case. In Northern Ireland, bereavement damages were increased in 2016 to £14,400, to be adjusted every three years, leaving those in England and Wales with the lowest level of bereavement damages in the UK.

The issue of the need for reform of the law regarding bereavement damages, came to light again in the recent case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others [2017] EWCA Civ 1916. Miss Smith lived with her partner, John, for eleven years until his death in October 2011. John died as a result of the negligence of two defendants. Miss Smith brought a claim for damages for herself and his Estate under the Fatal Accidents Act 1976 but was unable to recover bereavement damages because the restriction of those dependants who are entitled to such an award does not include cohabitees. Miss Smith took the step of bringing in the Secretary of State for Justice as a third defendant and pursued a claim for bereavement damages. She argued that the restrictions under the Fatal Accidents Act 1976 were discriminatory and incompatible with the European Convention on Human Rights, as all UK legislation must comply with, or justifiably depart from, the provisions of the European Convention on Human Rights.

The Court of Appeal found that the provision of bereavement damages was a measure by which the State showed respect for family life, in line with Article 8 of the European Convention on Human Rights. They found that there was no justification to discriminate against long-standing cohabitees, particularly in cases where they could recover damages for loss of dependency and where they would experience grief, such that was intended to be compensated by an award of bereavement damages. In the circumstances, the Court of Appeal declared the relevant part of the Fatal Accidents Act 1976 to be incompatible with the European Convention on Human Rights.

What this means in practice

This ruling clearly marks the Court’s acknowledgment that the provision of bereavement damages falls within Article 8 of the European Convention on Human Rights, being the right for respect for family life, which should be enjoyed without discrimination and that presently, the Fatal Accidents Act 1976 is incompatible with this. Cohabitees, and arguably other dependants who can claim for a loss of dependency on the deceased, such as parents, children, brothers, sisters, aunts or uncles of the deceased, should qualify for bereavement damages.

Whilst it is advisable to inform a Claimant that they may have a potential claim for bereavement damages, until such time as the Fatal Accidents Act 1976 is amended, compensators are not obliged to pay bereavement damages to any dependent who does not fall within the current restricted category of dependants who are entitled to this award. It now falls to Parliament to amend the Fatal Accidents Act 1976 to ensure that it is compatible with the provisions of the European Convention on Human Rights and to provide greater justice for bereaved families, widening the category of those who can claim bereavement damages and bringing such damages in line with the rest of the UK.

This content is correct at time of publication