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Bereavement damages incompatible with human rights

The Court of Appeal has declared that the current scheme for bereavement damages under the Fatal Accidents Act 1976 (FAA) is incompatible with  the  European Convention on Human Rights (ECHR) as it excludes cohabitees. The recent decision in Jacqueline Smith v Secretary of State for Justice [2017] will have far reaching consequences, provided the government amend the legislation in response to the decision. If so, cohabitees will have to be included amongst those entitled to bereavement damages, currently set at £12,980.

The facts

Ms Smith had been living with Mr Bulloch in the same household as partners for over 11 years until his death. They were not married, but their relationship was considered equal in every respect to a marriage. He died as a result of the admitted negligence of two NHS Trusts, who settled Ms Smith’s claim for dependency damages. She did not make a claim for bereavement damages as cohabitees are not a recognised category of Claimant under s.1A FAA. Her claim proceeded against the Secretary of State on the basis that s.1A was incompatible with the provisions of the ECHR.

The Judgment

The Court declared that s.1A FAA was incompatible with the Claimant’s rights under Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family and private life). The essence of the decision was the link between the exclusion of people cohabiting for over 2 years with the core value of respect for family life in Article 8. It rectified the discrepancy in the provision for a bereavement award and the definition of a “dependant” under the FAA, which includes a 2 years + cohabitee.

No award for damages was made as the claim was abandoned during the course of the appeal as s. 8 HRA permits damages to be awarded only if the public authority has acted unlawfully under s.6 HRA. The Secretary of State had not acted unlawfully because under s.1A of the FAA he could not have acted differently as cohabitees are not entitled to a bereavement damages award.

Our view

This is a further major decision in the area of fatal accidents law in the last 2 years. In the 2016 case of Knauer v Ministry of Justice (2016), the Supreme Court changed the basis for calculating future dependency claims stipulating that the multiplier for future losses of a deceased’s dependent should run from the date of trial instead of from the date of death. The result of this has been higher damages awards for loss of financial and services dependency in fatal claims.

The Court of Appeal’s decision in Smith represents an eagerness to bring the legislation in line with modern society. The anomaly whereby 2 years + cohabitees can recover damages for dependency (s.1 FAA), but not the bereavement award (s.1A) has long been considered out of kilter with the reality of modern family life.

The Parliamentary response to Smith when it comes to cohabitees is to be determined and could very well be delayed given the current focus on Brexit, not to mention the personal injury discount rate. However, it seems likely that the Court of Appeal’s stance is likely to reignite the debate around other categories of Claimant under s. 1A who are also missing out: brothers and sisters, grandparents. It could also create a dialogue about widening the definition of “deceased” to include stillborn babies and about the qualifying period of 2 years for individuals to be defined as “cohabitees”. 

Changes in reserving for damages in fatal accident claims are not necessary at this stage.  However, Smith and Knauer are clear indicators that the appeal courts are looking closely at whether our fatal accidents law is in line with 21st century social values.

How Capsticks can help

We act for a range of healthcare organisations and individual clinicians on instructions from their insurers and can advise on all aspects of FAA claims. Please contact Majid Hassan, Anna Walsh or David Roberts for more information.

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