Cohabitants to be entitled to recover bereavement damages
The Ministry of Justice proposes change to legislation to allow cohabiting couples to recover bereavement damages
Under the Fatal Accidents Act 1976 (FAA), where a death has occurred as a result of negligence, the action can include a claim for bereavement damages. This is a statutory award of damages, currently set at £12,980. The current legislation is clear that this award is only payable to s. 1A:
“(a) the wife or husband (or civil partner) of the deceased; and
(b) where the deceased was a minor who was never married (or a civil partner)—
(i) of his parents, if he was legitimate; and
(ii) of his mother, if he was illegitimate.”
There is currently no provision for such a payment to be made to the unmarried partner of the deceased even if they had been cohabiting for many years.
This is particularly obscure in light of the fact that the same Act (s.1) defines “dependent” of a deceased as:
“a) the wife or husband or former wife or husband of the deceased; ((aa)the civil partner or former civil partner of the deceased;)
(b) any person who—
(i) was living with the deceased in the same household immediately before the date of the death; and
(ii) had been living with the deceased in the same household for at least two years before that date; and
(iii) was living during the whole of that period as the husband or wife(or civil partner) of the deceased;…”
Not only is the provision at s.1A FAA, regarding bereavement damages, at odds with the wide category of Claimant included within the definition of “dependent” at s.1of the FAA, it has also been held to be incompatible with Article 8 of the European Convention on Human Rights following the Court of Appeal decision in Smith (suing in her own right and as the surviving partner of Bulloch, deceased) v Lancashire Teaching Hospitals NHS Foundation Trust and others  EWCA Civ 1916,  All ER.
In that case, Ms Smith had lived with her partner Mr Bulloch for 11 years prior to his death but they were not married. It was admitted that but for the Defendant’s negligence, Mr Bulloch would not have died. Under the FAA Ms Smith was entitled to make a claim for loss of dependency but she was not able to recover bereavement damages. The Court of Appeal was therefore asked to consider the relevant legislation and to determine whether Ms Smith should be entitled to recover an award for bereavement damages. In making their ruling the Court of Appeal stated “the difference between section 1 and section 1A of the FAA as to the treatment of 2 years + cohabitees is clear, express and intentional and is an ingrained feature of the legislation” and therefore concluded that it could not extend s.1A as this would only be possible through a change to the legislation. However, the Court of Appeal issued a declaration of incompatibility with Article 8 of the European Convention on Human Right (right to respect for private and family life, home and correspondence).
Following the Judgement in Smith in 2017, in May 2019 the Ministry of Justice published a proposal for a Remedial Order to amend the Fatal Accidents Act 1976. The proposal sets out that legislative change is required to address the finding of an incompatibility with Article 8 in Smith as the incompatibility has occurred as a result of statutory limits on the award of bereavement damages under the existing section 1A FAA. The proposal states:
“The Government proposes to implement the judgment by amending section 1A FAA to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to the death.”
The remedial order will also provide that in instances where there is both a qualifying cohabitant and an eligible spouse is eligible (i.e. where the deceased was still married but had been in a new cohabiting relationship for at least two years) the award should be divided equally between the eligible claimants. This is consistent with the approach adopted in the legislation in respect of parents of a minor child.
While this is a positive step towards amending the legislation it is not the end of the story. The proposal for the draft order will now be laid before Parliament for 60 days during which time representations may be made. Following this the draft order, with any revisions the Government wishes to make in light of any representations received, must be laid for a further 60 days. It then needs to be approved by a resolution of each House of Parliament before it can be made. It is therefore likely that any change to the Fatal Accidents Act 1976 will not be implemented for at least 6 months.
Within our medical negligence team and personal injury team, we have considerable experience of dealing with fatal claims. If you or your family require advice in respect of a potential fatal claim, please do not hesitate to contact us online or call 0800 316 8892.