Modernising Bereavement Damages Update
From 6 October 2020, there will be a significant change to the law of bereavement damages in England and Wales – cohabiting partners of over 2 years will be eligible for bereavement damages under the 1976 Act.
Under the Fatal Accidents Act 1976, if it can be established that a person has died as a result of negligence, a fixed sum of £15,120 in respect of bereavement damages will be awarded to the spouse or civil partner of the deceased or to the parents of a minor, if the deceased is under the age of 18.
The amendment to the Fatal Accidents Act reflects the Court of Appeal ruling in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others in 2017. Ms Smith had been living with her partner, John Bulloch, for 16 years when he died in 2011 following a failure to diagnose an infection. She pursued a claim for damages for medical negligence. She was denied bereavement damages on the basis that she did not fall within the class of dependants listed under the Fatal Accidents Act 1976 as she was neither his wife nor civil partner. She argued that the 1976 Act was a breach of the European Convention on Human Rights.
The Court of Appeal allowed her challenge on the basis that limiting the category of persons eligible for bereavement damages to the spouse or civil partner of the deceased (or, in the case of a minor who has never married or been a civil partner, the parents of the deceased) was contrary to Article 8 and 14 of the European Convention of Human Rights (which relate to the prohibition of discrimination and the right to a private and family life).
In relation to actions arising after 6 October 2020, the 1976 Act will be changed so that: –
- a cohabiting partner may be eligible for bereavement damages, in addition to the spouse or civil partner of the deceased (or, in the case of a minor who has never married or been a civil partner, the parents of the deceased) and
- where more than one person is entitled to an award of bereavement damages, the award must be shared equally between them.
‘Cohabiting partner’ is defined as any person who had been living as wife, husband or civil partner of the deceased for a period of at least 2 years, immediately prior to the deceased’s death.
This amendment is considered long overdue and brings fairness to cohabiting partners who find themselves in tragic circumstances.