In the recent case of Smith v Lancashire Teaching Hospitals NHS Trust (2016), the High Court reviewed the law on bereavement damages and highlighted a need for reform.
The deceased had lived with the Claimant for 11 years but they were not married. The deceased died as a result of the Defendant’s negligence.
Under the Fatal Accidents Act 1976 (“the Act”), a tortfeasor is required to compensate for the loss of dependency to any person who is a “dependant”. This is broadly defined to include spouses, civil partners and any person who “had been living with the deceased in the same household for at least two years”.
However, damages for bereavement can only be claimed by spouses and civil partners.
The claimant contended that the denial of bereavement damages violated her right to respect for family life and was discriminatory under the European Convention of Human Rights (Articles 8 and 14). She sought a declaration that she was entitled to an award of £11,800, being the bereavement award at the date of death. In the alternative, she sought a declaration that the Act was incompatible with the European Convention of Human Rights.
Mr Justice Edis reviewed the legislative background in detail and made the following observations:
- In 2009, the API had supported the extension of those entitled to claim bereavement damages, to include 2 year + cohabitees. The current list was described as “too restrictive”. The judge recognised the contradiction in the current law – “why should the state’s resources be expended on providing a form of compensation for victims of crime which insurers of tortfeasors are not required to provide…?”
- The reason for the distinction between loss of dependency and bereavement damages had never been explained in Parliament.
- The number of cohabiting couples grew by 29.7% between 2005 and 2015.
- Parliament had in the past shown flexibility to changes in society. Both dependency and bereavement damages had been extended to include civil partners and same sex marriages.
- In 1999, the Law Commissioner had recommended that the list of those entitled to recover bereavement damages should be substantially broadened to include 2 year + cohabitees. A draft Bill had even been published.
- Under the Criminal Injuries Compensation Scheme, 2 year + cohabitees could recover both dependency and bereavement damages.
On the facts, the claimant had not shown that Article 8 was engaged. There were three main reasons:
- She had not shown there to be a “direct and immediate link”between the bereavement damages restriction and her family life.
- She had failed to convince the judge that the denial of the award for bereavement damages implied that the grief felt by the claimant was less valued by the state than would have been the case had she been married.
- The “level of interference”involved in refusing the availability of a relatively modest payment was below the threshold of seriousness to engage Article 8.
The decision was clearly made with reluctance. The judge accepted that“the claimant is clearly in an analogous position to the survivor of a civil partnership or marriage”. Reform is therefore needed. “It is to be hoped that the outcome of this litigation may provoke some further discussion in Parliament for further legislation which might improve the current state of the law”.
The Implications are that insurers have been warned that, at some point in the future, there is every likelihood that the Act will be reformed so that the scope of those entitled to recover bereavement damages is significantly extended.