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Unmarried and bereaved – fatal accident damages reviewed Smith v Lancashire Care NHSFT [2016] EWHC 2208 (QB)

One of the ways in which marriage still matters is in fatal accident damages. How much do you get when your spouse or civil partner dies? £12,980 in bereavement damages. How much when the person you have cohabited with throughout your life, but never married, dies? Nothing, at least for bereavement.

A fairly broad range of people, listed at s1 Fatal Accidents Act 1976, can claim dependency damages i.e. compensation for what the deceased would have provided them, whether by paying into the household or providing other services, from childcare to gardening. They include people who have cohabited with the deceased for two or more years, albeit without being married. A much narrower range, listed at s1A, can claim, in addition, for the fact of bereavement. They are the wife/husband/civil partner of the deceased, or the parents of an unmarried minor child (the mother if the child was illegitimate).

The Claimant in Smith had been the partner of a man who died as a result of admitted negligence. They had lived together for many years. She was able to claim dependency damages, as she fell within the s1 list, but was excluded from bereavement damages as she fell outside the range in s1A. She claimed that this was unjustified discrimination, and fell foul of the Human Rights Act.

Following the High Court’s analysis of the issue, it seems fairly clear that the exclusion of people such as the Claimant from bereavement damages lacks any meaningful rationale. The Law Commission produced a draft bill in 2009 which would have allowed unmarried partners who had lived with the deceased for two years or more to claim bereavement damages, but that bill was shelved by the new government in May 2010, apparently for reasons unrelated to this issue. The Criminal Injuries Compensation Authority does compensate unmarried dependents who had cohabited for two or more years. The Association of British Insurers has supported the extension of bereavement damages to them too.

In Smith, Edis J reviewed the authorities on Articles 8 and 14. He concluded that the failure to allow a claim for bereavement damages did not fall within the ambit of Article 8. As such, the Court had no basis to intervene. The case will therefore lead to no direct change to the Fatal Accidents Act – but Edis J’s criticism of the problems with the Act may perhaps move reform up the political agenda. 

Ross Beaton / 22nd Nov 2016


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