Bereavement Damages – Time for Reform…

Woman crying at therapist office

A woman has won her landmark battle for greater legal recognition for unmarried couples who suffer bereavement as a result of someone’s negligence.

Jakki Smith, who lost her partner of 16 years in October 2011, has successfully argued that her inability to claim bereavement damages was a breach of her human rights in that it discriminated against her on the grounds of her non-marital status and her right to respect for family life.

The law setting out the criteria for claiming the bereavement award is contained in the Fatal Accidents Act 1976. The amount awarded is set by statute and is currently £12,980.

Ms Smith discovered she was not entitled to the sum of £12,980, after John Bulloch underwent the removal of a benign tumour on his right foot in August 2011 and fell ill while on holiday in Turkey.  Sadly, he died after doctors missed an infection.

In England and Wales, the only people entitled to claim bereavement damages are: –

  • a spouse,
  • a civil partner,
  • both parents of a legitimate child under the age of 18 or
  • the mother of an illegitimate child under the age of 18.

On Tuesday, the Court of Appeal allowed Ms Smith’s challenge against a High Court ruling dismissing her claim.

The Master of the Rolls, Sir Terence Etherton, Lord Justice McCombe and Sir Patrick Elias set aside a ruling by Mr Justice Edis last year that there was no incompatibility between the 1976 Fatal Accidents Act and Ms Smith’s Convention rights.

Mr Justice Edis said he had no power to intervene.  However, he added that the current law was in need of reform.

Ms Smith has said:

“Until John died I hadn’t realised that our relationship would be treated any differently and when I did it just struck me as hurtful and unfair that it could be considered less meaningful because of that.

John and I had planned a life together, we were in it for the long run and the fact that our bond wasn’t recognised, simply because we hadn’t chosen to marry, was very upsetting.

That’s why I’m over the moon with the court’s decision and I hope that the change in law will have a positive impact on other people who, for whatever reason, choose not to marry…

If you are living together the Government classes you as a couple for the purpose of payments like council tax and Jobseeker’s Allowance, so why not when it comes to this?

There’s no longer a taboo around being unmarried; attitudes have changed, society has moved on and the law needs to be changed to reflect that.

For me it’s the principle and as marriage rates fall year on year it’s for those people who find themselves in this position.

Nothing will bring John back, but he was a firm believer in everyone being treated equally and I think he would have agreed with me that this is worth fighting for.

Just because John and I hadn’t said vows to each other and didn’t wear wedding rings didn’t mean we weren’t completely committed to each other.

My fight has never been for the money, it’s about having meaningful relationships recognised.

This result won’t make any difference to me – I won’t get a penny from it as you can’t get a retrospective payment.

I just hope what has happened helps other people who may find themselves in this tragic situation.”

Whilst the courts have declared that this legislation is incompatible with people’s Human Rights, this decision does not currently affect the validity of the law.  It remains up to Parliament to decide whether or not to amend the law.

In Scotland the law is different and enables claims to be made by “immediate family” including:

  • spouses,
  • cohabitees,
  • parents,
  • children,
  • siblings,
  • grandparents and
  • grandchildren.

Furthermore, there is no limit on the damages which can be claimed. Instead, a judge considers the matter on a case by case basis and takes into account individual circumstances before reaching a decision.  In practice the awards in Scotland are often much higher than the £12,980 available in England and Wales.

With the restriction on who can claim the award and the amount that can be claimed in England and Wales, it could even be said that it is sometimes “cheaper” to kill someone than seriously injure them.  This is very difficult to accept as I’m sure you’ll agree.  It also concerns me that: –

  1. there is a blanket value on all bereavement claims;
  2. children cannot claim for the death of their parents;
  3. unmarried fathers cannot claim for the death of their child; or
  4. parents cannot claim for their child if they are a day older than 18.

Hopefully this decision will now result in a change to the law on bereavement damages in England and Wales.

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