Bereavement Damages changes – do they go far enough?

Claimant lawyers have long argued that the rules regarding bereavement damages are in desperate need of revision.

Bereavement damages are due to change but do the reforms go far enough?

Scott Haslam, Associate Solicitor in Clinical Negligence at Wake Smith, sets out his thoughts on the proposed reforms.

“Currently, under the Fatal Accidents Act 1976, a Court can award bereavement damages where a death has occurred as a result of negligence. This is a statutory award which is currently set at £12,980.

“However, Section 1A of the current legislation makes it clear that the award is only available to the wife, husband or civil partner of the deceased, or the parents of a deceased child (assuming they were a minor and had not married).

“There is currently no provision for bereavement damages to be paid to the deceased’s unmarried partner, even if they had been cohabiting for many years, but this may now change thanks to reforms proposed by the Ministry of Justice in May 2019.”

The proposal comes following the Court of Appeal’s Judgment in 2017 in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others.  In the Smith case, Ms Smith had lived with her partner, Mr Bulloch, for 11 years prior to his death but they had never married.  Whilst the Defendant accepted that it was responsible for Mr Bulloch’s death, it refused to pay Ms Smith bereavement damages as she did not satisfy the criteria of the Fatal Accidents Act 1976 – due to the fact that Ms Smith was not married to Mr Bulloch at the time of his death.

The Court of Appeal had to consider whether Ms Smith should be entitled to bereavement damages.  It found that “The difference between section 1 and section 1A of the [Fatal Accidents Act 1976] as to the treatment of 2 years + cohabitees is clear, express and intentional and is an ingrained feature of the legislation”.  As such, the Court could not extend section 1A to include an award of bereavement damages for Ms Smith.  This would only be possible through a change of legislation.

Scott added: “Importantly, the Court of Appeal made a declaration of incompatibility with Article 14 (protection against discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.  In other words, the Court of Appeal found that the current legislation is inconsistent with Human Rights legislation.

“In May 2019, the Ministry of Justice published a proposal for a remedial order to amend Section 1A of the Fatal Accidents Act 1976.

The proposal acknowledges the Court of Appeal’s ruling in the Smith case, and “…proposes to implement the judgment by amending section 1A [of the Fatal Accidents Act 1976] 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.”

Scott explained: “The amendment also proposes that the award should be split equally where there are two eligible Claimants, such as where the deceased was still married but had also been in a cohabiting relationship with a new partner for at least two years.

“Whilst this represents a significant step towards modernising the current legislation, the resolution still needs to be approved by Parliament.  That is unlikely to happen until the end of the year (at the earliest).

“Even if ratified by Parliament and brought into law, the remedial order fails to address other apparent injustices in the way bereavement damages are distributed.

“Currently, the parents of an unmarried minor would be entitled to a bereavement award, but parents of an unmarried adult would not.  In circumstances where there has been a negligent act or omission at a time when the deceased was a minor, but the death occurred in adulthood, no bereavement award would be payable.

“Likewise, if a child loses a parent, they are not entitled to a bereavement award either.

“There are clear public policy reasons for trying to limit the situations in which bereavement damages are payable, but surely the grief experienced by the parents of a 19-year-old is no different to that of a surviving spouse or the parents of a minor.”

Bereavement damages can also depend on your postcode, as a different situation exists in Scotland.  Under the Damages Act 2011, there is no statutory limit on bereavement damages and more family members are entitled to claim.  The list of people potentially entitled to claim bereavement damages includes: spouses, civil partners, parents, children, siblings, grandparents, grandchildren, and those treated by the deceased (or who treated the deceased) as such members of their households.

Scott added: “There are no fixed statutory limits on the compensation payable in Scotland with case instead being considered on their own individual merits.  Several factors are taken into account by the Court in deciding whether damages should be paid, and if so the amount to be paid.  These include: the strength and length of the relationship between the Claimant and the deceased, their respective ages, and the emotional/psychological impact of the loss. 

“It is clear that the proposed changes to Section 1A of the Fatal Accidents Act 1976 are a step in the right direction, but even if the proposals are brought into law, the amendments still don’t entitle citizens in other parts of the UK to the same damages as those in Scotland.  Would it not be fair, just and reasonable for a similar statutory framework to exist in the rest of the UK?”

For advice or assistance regarding a claim for bereavement damages, please contact Scott at scott.haslam@wake-smith.com or on 0114 224 2127.

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