Bereavement damages: The current law
When someone dies as the result of medical negligence certain people are entitled to claim compensation for ‘dependency’ and for ‘bereavement damages’ under the Fatal Accidents Act 1976.
Dependency claims are an option for a wide range of people including: spouses; civil partners; children; siblings; and couples who have been co-habiting as husband and wife for two or more years at the time of the deceased’s death.
However, the entitlement to bereavement damages is limited to a very small class of people:
- If the deceased is an adult you have to be their spouse or civil partner.
- If the deceased is a child you must be either the parents of the legitimate child or the mother of the illegitimate child.
There is currently no provision for a bereavement award for couples who co-habit, regardless of whether or not they have children. This is very different to the law in Scotland where bereavement damages can be claimed by cohabitees and other family members.
Time for change?
Bereavement damages were introduced in 1982 and ever since then there have been calls for a reform in the law. In 1999, the Law Commission produced a paper on “Claims for Wrongful Death” which recommended extending the category of claimants to parents of deceased children (regardless of legitimacy) and long-term partners.
Following the consultation period a report showed that 80% of the responses were in favour of extending the award to co-habiting couples. It was the consensus that compensation should be available to those closest to the deceased. It was suggested that there be a qualifying period of two years co-habitation prior to the deceased’s death, mirroring that required to claim a dependency award.
Similar reforms were suggested by the Law Commission in 2009. These suggestions became the Civil Law Reform Bill which proposed extending the category of those eligible to those wholly or partly maintained by the deceased immediately before death. However, this Bill was subsequently dropped by Parliament.
In October 2015, The Negligence and Damages Bill, brought by Labour MP and personal injury solicitor Andy MacDonald proposed extending the category of persons entitled to bereavement damages to include co-habiting couples. This Bill was due to have its second reading in the House of Lords on 13 May 2016, but has currently been side-lined due to impact of the EU Referendum. Further to this there is also the Cohabitation Rights Bill, which looks at the need for greater legal recognition for unmarried couples generally. This has had its second stage reading in the House of Lords and is now at the committee stage.
Jakki Smith vs Secretary of State
On the back of these calls for reform, Ms Jakki Smith brought a case before the High Court following the death of her partner, John Bulloch. Ms Smith and her partner were together for 16 years and cohabited for 11 of those years. They did not marry.
Following John’s death from medical negligence in 2011 Ms Smith discovered that she was not entitled to the statutory bereavement award. Ms Smith brought a case against the Secretary of State for Justice claiming that the law governing bereavement damages breached her human rights in respect of the right to freedom from discrimination (Article 14 of the European Convention on Human Rights) and the right to respect for private and family life (Article 8). She argued that she was being discriminated against on the basis of their decision not to marry.
In support of her claim Ms Smith argued that the current law fails to reflect our changing society, where a large percentage of couples choose to cohabit rather than marry. Such a choice should not be taken to reflect on the viability of a long-term partnership nor on the level of grief suffered should one of those partners die. The Office of National Statistics bulletin, “Families and Households in the UK:2016” shows that co-habiting couple families have been the fastest growing family type between 1996 and 2016, more than doubling from 1.5 million families to 3.3 million families over that time.
Disappointingly the High Court did not decide in Ms Smith’s favour. Her application was dismissed as the Judge found that the current law governing bereavement damages did not violate Ms Smith’s Article 8 or 14 rights.
However, the judge accepted that society has changed and there is a need for reform in this area of the law but that he was powerless to intervene. His judgment concluded by saying that he hoped:
“The outcome of this litigation may provoke further discussion in Parliament for further legislation which might improve the current state of the law”.
It has been reported that Ms Smith intends to appeal the High Court decision. It is to be hoped that this will push the Government to recognise the need for reform and how important it is for the law to reflect modern relationships.
Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances
