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Update: Bereavement damages

View profile for Tim Edwards
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Bereavement damages have been in the spotlight again following the recent decision of the Court of Appeal in the case of Smith v Secretary of State for Justice.

Bereavement awards in England and Wales are provided for under the Fatal Accidents Act 1976. The current award is limited to the sum of £12,980 and awarded in personal injury/clinical negligent actions involving a fatality and negligence of a third party to the following:

  1. a spouse/civil partner of the deceased;
  2. the parents of a deceased child up to the age of 18.

There have been previous attempts to extend the class of those entitled to an award to include children, single fathers and cohabiting couples, but this has never become law.

The decision in Smith has now changed the landscape and is likely to result in an extension of the class of persons for whom an award would be made in the circumstances outlined above.

Jakki Smith had cohabitated with her partner John Bulloch for about 16 years prior to his death resulting from clinical negligence. Ms Smith pursued the government for a bereavement damages award under Human Rights legalisation contending that the government had breached her human rights in denying her bereavement damages. Ms Smith was not otherwise entitled to pursue a claim under the Fatal Accidents Act.

Ms Smith contended that the bereavement award should be available to anyone who had been in a relationship for at least two years. In all likelihood this argument has its roots in other provisions within the Fatal Accidents Act where a dependant claimant includes any person who has been living with the deceased in the same household for at least two years before the date of death. Whilst such a person might therefore be entitled to a dependency award that same person was not entitled to a bereavement award.

In what may be seen as a landmark ruling the Court of Appeal has now upheld Ms Smith’s claim thus it now remains to be seen whether the government will amend legislation to provide for at least cohabiting couples to be eligible for bereavement damages.

Human Rights legislation often receives a poor press but this was arguably an occasion where the legislation has resulted in a sensible and fair outcome for the injured party.

09/05/2019

As I alluded to in my post of 30 November 2017 the decision in Smith is likely to result in a change in the law and an extension of the class of person for whom a Bereavement Award can be made in the circumstances outlined in my earlier post.It has taken some time since the original decision but the Government have now presented a draft of a proposed Remedial Order to amend Section 1A of the Fatal Accidents Act 1976 to allow an award of Bereavement Damages to Claimants who had co-habited with the deceased person for a period of at least two years immediately prior to the death. Legislative change has been deemed necessary due to the findings of the Court of Appeal in Smith and will now proceed through the Parliamentary process with a change in law likely by the middle to latter end of this year. The change in the law is also intended to provide for an equal division of a Bereavement Damages Award in the event that there is more than one eligible Claimant i.e. a co-habitant who had resided with the deceased for two years prior to death and a spouse to whom the deceased was still married but not divorced at the date of death.