Bereavement damages and cohabitees

A landmark decision of the Court of Appeal at the end of November has paved the way for a wider class of claimants to claim bereavement damages under section 1A of the Fatal Accidents Act 1976 (FAA).

Decision

In Smith v Lancashire Teaching Hospitals and Others, the Court of Appeal was invited to make a declaration that section 1A FAA as currently worded, is incompatible with the European Convention on Human Rights. The claimant, Ms Smith, had lived with her partner Mr Bullock for some 11 years in the same household as husband and wife. He died as a result of the admitted negligence of the defendant NHS Trusts.

As a 2+ years cohabitee, Ms Smith was able to recover damages for a loss of dependency but could not claim bereavement damages (currently fixed at £12,980) as such awards are limited to spouses or civil partners, where the deceased was an adult.

The Court of Appeal considered that the situation of Ms Smith was sufficiently analogous to the position of a surviving spouse or civil partner, to require any discrimination to be justified in order to avoid infringement of Article 14 (Prohibition of Discrimination) in conjunction with Article 8 (Right to Respect for Private and Family Life). Absent evidence of justification, the Court of Appeal made a declaration of incompatibility.

Future claims

This decision does not change the law, as a statute can only be altered by Parliament. Defendants therefore are still not under a strict duty to pay bereavement damages to anyone who does not fall within the current wording of section 1A FAA.

In the light of this decision, it is expected, however, that claims will now be made by 2+ years cohabitees and other claimants. Given that cohabiting couples continue to be the fastest growing family type in the UK, the increase in the number of claimants seeking such awards is likely to be significant.