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The unfairness of the law on bereavement damages following fatal accidents

In this enlightened age you may be surprised to learn that following a fatal accident a cohabiting partner has no entitlement to an award of bereavement damages.  The statutory payment of £12,980 is payable to the husband or wife left behind and to a formal civil partner,  but not to anyone whose relationship – however long and however meaningful  –  had not been formalised by a marriage certificate or civil partnership registration. 

This wholly unsatisfactory situation has recently come for review by the Court of Appeal in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others. The finding of the Court was that the Fatal Accidents Act 1976 allows cohabitees to claim for dependency but does not permit them to claim bereavement damages. This distinction was found to be incompatible with the European Convention on Human Rights.  While the Act remains law this situation cannot be altered but consideration should be given to paying bereavement damages to cohabitees.    The Judges sitting in the Court of Appeal made the following observations:

  • Cohabitees of long-standing should be entitled to bereavement damages, but are not so entitled while the Fatal Accidents Act is in its present form;
  • Arguably, other classes of claimants may be entitled to bereavement damages;
  • Until the Act is changed compensators (including public authorities) are not obliged to pay bereavement damages to cohabitees; and
  • Where bereavement damages are paid to a claimant, he or she should not be entitled to a further award for loss of care and affection.

In Smith the Court of Appeal found that the provision of bereavement damages was a measure by which the State shows respect for family life, which is a core value of Article 8 of the European Convention on Human Rights. There was no real justification to discriminate against long-standing cohabitees particularly where those same people could recover damages for loss of dependency, and would experience the exact same grief which the award exists to compensate for.

The Court of Appeal declared that the relevant part of the Fatal Accidents Act is incompatible with the Convention. It now falls to Parliament to amend the Act.

Will insurers do the decent thing? Until the Act is amended they are not obliged to pay bereavement damages to cohabitees. We will though look to include such a claim wherever possible and argue the moral obligation at this stage.

What about the separate awards for loss of care and affection?   Historically in an effort to justify some payment for a bereaved cohabitee claimant’s solicitors, including us, have sought to claim a modest amount in this respect. The Court did not comment on claims for damages for the loss of a partner’s care and affection (as distinct from bereavement damages),  but its confirmation of what bereavement damages  are meant to compensate for seemed to be a clear indication that a person awarded  formal bereavement damages  should not receive any separate award.

Will other people be able qualify for bereavement damages?

The entitlement to a bereavement damages award – other than to married or civil partners – is very limited.  For example a parent suffering a death of a child of 18 years of age or over has no such entitlement  –  whereas under that age they do –  and  I have seen many tragic cases involving the deaths of young unmarried  girls and boys where this has been the case.  It is a very difficult thing to explain to a mother or father that the law dictates that the death of their child will result in little or no compensation at all.

The Court of Appeal made clear the existing scope of bereavement damages as “intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners.” It is rigid in its wording and until Parliament looks again at the Fatal Accidents – as indeed it should – there will be no entitlement to anyone outside its current scope.  Again it is to be hope that insurers look to do the decent thing in these tragic cases.

Contact us for advice following loss of a loved one from a fatal accident.  We will do all that we can to help.

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