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Bereavement Damages: Better Rights for Cohabitees?

11 Dec 2017

The Court of Appeal has recently given its judgement in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundations Trust and others [2017] EWCA Civ 1916, paving the way for better legal rights for cohabitees.

The Current Law
Currently, the Fatal Accidents Act 1976 (“FAA”) allows cohabitees to claim for dependency, but does not allow a claim for bereavement damages. Miss Smith argued that the current legislation was in breach of the European Convention on Human Rights (“ECHR”). Although the FAA remains law, the recent decision means that consideration should be given to paying bereavement damages to cohabitees.

The FAA allows for the following to claim for bereavement damages, which are capped at £12,980:

  • A spouse or civil partner of the deceased; and
  • Where the deceased was a minor who was never married or a civil partner, to his/her parents (if they were married) or to his/her mother (if his/her parents were unmarried).

Jacqueline Smith’s Case

For over 11 years Miss Smith lived with her partner, Mr Bulloch, until his death on 12 October 2011. Mr Bulloch died as a result of admitted negligence in which there was a failure to diagnose an infection in his right foot.

Miss Smith was unable to recover an award for bereavement damages because she was not married to Mr Bulloch, despite their long and close relationship. This is because cohabitees are not included in the FAA. Miss Smith therefore joined the Secretary of State for Justice as a defendant to her claim. Miss Smith proceeded against him in respect of her claim for bereavement damages arguing that the provisions of the FAA were discriminatory and incompatible with Articles 8 (right to family life) and 14 (protection from discrimination) of the ECHR.

Holding Hands

The Court of Appeal ruled that the relevant part of the FAA is incompatible with the ECHR and it is now for Parliament to scrutinise and amend the FAA.

The Law Commission had previously recommended that cohabiting couples should be eligible for bereavement damages, but a draft bill produced in 2009 failed to become law. The recent decision will pave the way for better legal rights for cohabitees. There is also scope for additional classes of people, apart from spouses and parents of minor children, to have a claim for bereavement damages.

Whilst there is no duty for compensators to pay bereavement damages to cohabitees, pending an amendment to the FFA, the Jacqueline Smith case provides justifications to claim a bereavement award on behalf of a cohabitee.

The decision is an encouraging step in recognising the rights of cohabitees. However, the current question before the government is this: when considering an amendment to the FAA, how far will they go in order to strike an appropriate balance between those who are entitled to an award of bereavement damages, and those who are not, whilst ensuring that no potential class is discriminated against?
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