Bereavement damages incompatible with ECHR

Clinical Negligence | 6th December 2017

The Court of Appeal has recently recognised that cohabitees as well as married couples (widow/widower) and civil partners have a right to bereavement damages (Smith v Lancashire Teaching Hospitals NHS Foundation Trust 2017).

The case highlights that the death of an unmarried partner due to negligence should be compensated in the same way as losing a spouse or civil partner. The decision fundamentally changes the law for cohabiting couples and redresses the balance in favour of those bereaved by negligence.

The case looked at the Fatal Accidents Act 1976, (FAA 1976) which provides for a bereavement payment. The widow argued that the Act was in breach of Articles 8 and 14 of the European Convention on Human Rights (ECHR) because it affected the claimant’s right to respect for family life and discriminated against her because of her non-married status.

The case went to the Court of Appeal which declared that section 1A of the FAA 1976 was incompatible with Article 14 in conjunction with Article 8 because it excluded people who had lived together for over 2 years.

The case shows that the Court of Appeal is not afraid, in appropriate circumstances, to declare that English legislation contravenes the ECHR. The Law Commission had previously recommended that cohabiting couples should be eligible for bereavement damages.

The percentage of unmarried couples is ever increasing. Having to tell a client who has been bereaved that the law doesn’t recognise the status of their relationship and they have no right to the bereavement award is very hard and only adds to their grief. That will now change for those who have been living together for at least two years.

This judgment has fundamentally changed the law and shows that the courts are reflecting 21st century society by continuing to accept and extend the rights of unmarried couples.

However, the bereavement award of £12,980 is woefully insufficient in terms of compensating for the loss of a loved one. Further reform is anticipated as to the amount awarded for bereavement damages in the future. At least now the categories of those able to claim has been extended which is some compensation at least

Isabel Bathurst

Associate, Personal Injury and Clinical Negligence

Isabel joined Hart Brown as an Associate in June 2017 after spending five years as Partner at Pierre Thomas and Partners, working on high value cases ...

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