Bereavement damages: What are they, and should they be changed?

Thursday 30th May 2019

The Fatal Accidents Act 1976 provides for a damages payment to be made to a restricted category of individuals following the death of a person caused by the negligence of a third party. The restricted categories of individuals who have a statutory right to claim bereavement damages are:

● A spouse/civil partner of the deceased

● Parents of a deceased child up to the age of 18

The sum for the bereavement damages is currently £12,980, having been raised from £11,800 in April 2013. The level of damages has been heavily criticised for being too low and for not extending to a wider category of individuals. There have been efforts to extend the class of those entitled to damages . However, no changes have been implemented in legislation. Other types of compensation are still available, including claims for loss of services and any loss of dependency, but these are geared more towards pure financial losses rather than compensation for someone having an unnecessary bereavement.

The recent case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others (2017) is arguably a catalyst for change in this area of law.  Ms Smith alleged that it was a breach of her human rights to be denied bereavement damages on the basis that she was not married to her long term partner before he died as a result of admitted negligence. Despite their long relationship and cohabiting for over two years, Ms Smith was unable to recover bereavement damages because the Fatal Accidents Act 1976 does not permit cohabitees to receive it. She argued that the provisions of the Fatal Accidents Act are discriminatory and contrary to the European Convention on Human Rights.

The Court of Appeal found that there was no justification to discriminate against long-standing cohabitees. The Fatal Accidents Act 1976 provides that the surviving partner of an unmarried couple, who have been cohabiting for at least two years, is entitled to claim for financial dependency on the basis that he or she had previously relied on the deceased to contribute to household bills and expenses. It is not justifiable that cohabitees could recover damages for loss of dependency yet they could not recover bereavement damages where it could not be denied that they would experience the same grief that the award of bereavement damages is intended to compensate for.

Therefore the Court of Appeal agreed with Ms Smith and ruled that the Fatal Accidents Act was incompatible with articles 14 and 8 of the European Convention on Human Rights.

In May 2019, a Remedial Order was proposed to amend section 1A of the Fatal Accidents Act 1976 to allow for an award of bereavement damages to apply to a new category of Claimant.  The amendment would have the effect that a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death would be eligible to receive bereavement damages. It would also provide that in instances where both a qualifying cohabitant and a spouse is eligible (i.e. where the deceased was still married and not yet divorced or separated but had been in a new cohabiting relationship for at least two years) the damages should be divided equally between the eligible claimants. The Remedial Order has been made to implement the judgment of the Court of Appeal in the above case.

This is a welcome proposal that, if implemented, will make section 1A of the Fatal Accidents Act 1976 more reflective of modern society where many couples choose to cohabit and not necessarily marry.

We await the outcome of the proposal but it remains to seen if/when the changes will be implemented.

If you have been affected by a death of a loved one as a result of negligence, please contact us to discuss how to make a claim. 

Sumaya Ali, Trainee Solicitor

Waldrons Solicitors