BLOG: Bereaved and unmarried? – time for equality in compensation laws

Carly Philp – website

A proposal has been presented at Parliament for an amendment in the law to allow greater recognition for unmarried couples who suffer bereavement as a result of someone’s negligence.

Today, Justice ministers have presented a proposal for a Remedial Order to amend the Fatal Accident Act 1976.

Currently, 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.

The amendment will extend bereavement damages awards to a new category of claimant: –

  • the cohabiting partner of the deceased.

The ‘cohabiting partner’ has been defined as someone who

  1. lived with the deceased in the same household immediately before the date of death;
  2. lived with the deceased as their husband, wife or civil partner, and
  3. lived with the deceased in that capacity for at least 2 years.

What are bereavement damages and when are they awarded?

Bereavement damages is the payment fixed by law for the grief and trauma suffered when someone dies due to the actions of someone else. The level of the bereavement award is currently fixed at £12,980.

This proposal has come about following the decision of Mr Justice Edis in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust; Lancashire Care NHS Foundation Trust; and the Secretary of State for Justice ([2017] EWCA Civ 1916).

In that case the Court of Appeal found that the Fatal Accident Act was incompatible with Ms Smith’s rights under the European Convention on Human Rights (ECHR).

In that case, Jakki Smith, who lost her partner of 16 years in October 2011, 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.

Ms Smith discovered she was not entitled to a bereavement damages award after her partner John Bulloch died after doctors failed to diagnose and treat an infection he developed following the removal of a benign tumour on his right foot.

Whilst this proposal is very welcome, it still does not go far enough.

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

Despite this proposed change, it will remain the case that: –

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

I would welcome further overhauls to the law in this area and hope that this proposed change leads to more.

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