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Written on 30th September 2016 by Kim Milan

The Fatal Accidents Act 1976 sets out the categories of person who may receive a fixed bereavement award in the event that a loved one dies through the negligence of another party. The value of the award increases from time to time and is currently set at £12,980. 

As the years have progressed, there has been increasing dissatisfaction with the provisions. There are a number of reasons for this including the amount which is payable, and the categories of person who can receive the payment.

There is a fixed list of those who may benefit from a bereavement award. Those classes of persons include the more obvious such as a spouse or dependent child, and have been extended to include those in a civil partnership.

On 8 September 2016, judgment was handed down by Edis J of Queen’s Bench Division in the case of Jacqueline Ann Smith v (1) Lancashire Teaching Hospital NHS Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice [2016] EWHC 2208 (QB).

In this case, the NHS Trusts had admitted that the claimant’s partner had died as a result of their negligence. The claimant had cohabited with the deceased for some 11 years prior to his death. She was legally entitled to claim her loss of dependency on his income, and services under the Fatal Accidents Act. However, bereavement damages under the Fatal Accidents Act are limited to awards for the death of an adult to their spouse, civil partner or dependent child.

The claimant thought that this was unjust, so joined in the Secretary of State of Justice and sought to challenge the refusal to pay the bereavement damages. She sought a declaration to clarify the provisions relating to bereavement damages under the Fatal Accidents Act, or alternatively, a declaration that the provision in question, section 1A(2)(a) was incompatible with the Human Rights Act 1988.

The Court refused Ms Smith’s claim. The Court held that “the bereavement award is a symbolic award to compensate in money terms the grief caused by death. It does not seek to reflect the emotional loss or economic loss caused by the death”.

The Court did indicate that they were not clear that the Secretary of State for Justice had justified the difference in the provisions of the Fatal Accidents Act. Nonetheless, it held that the refusal to pay bereavement damages to a cohabitee was not in breach of the Human Rights Act.

This is a conflict which understandably would be very difficult for many cohabiting claimants to comprehend. The Law Commission recommended an amendment in 1999, and again in 2009. Although there has been reform made to include civil partners as Dependents and as well as same sex partners, no amendment has been made to the bereavement award.

Mrs. Smith’s lawyers are seeking permission to appeal, but unless the appeal is successful or there is a change in the law, this distinction is sadly likely to remain to the detriment of cohabitees.