Bereavement Damages | A step in the right direction for unmarried couples in fatal claims?

In November 2017, the Court of Appeal made an important ruling in the case of Smith v Lancashire Teaching Hospitals [2017] EWCA Civ 1916 putting unmarried couples (who had been in a relationship for more than two years) on the same footing as married couples and those in civil partnerships, making way for them to claim the statutory bereavement award.

What is the Bereavement Award?

The bereavement award in a successful personal injury or clinical negligence claim involving a fatality is currently a fixed sum set by Parliament at £12,980 pursuant to the Fatal Accidents Act 1976. Only two classes of persons are currently entitled to the bereavement award, those being:

  1. A spouse/civil partner of the deceased.
  2. The parents of a minor who was under the age of 18.

<H2>Are unmarried couples entitled to the bereavement award?</H2>

Where there is financial hardship following the death of a loved one, compensation can make a significant difference to a family’s future financial security.

One element of a fatal accident or clinical claim is the bereavement award. This is only awarded to the two restricted classes of persons described above and does not currently include unmarried couples or cohabitees, regardless of the length or permanence of their relationship.

This has long been considered as archaic and unfair and fails to reflect modern social standards. However, the Court of Appeal’s decision in Smith v Lancashire Teaching Hospitals extends the classes of persons entitled to the bereavement award.

An Overview of Smith v Lancashire Teaching Hospital

By way of background into the case, John, aged 66, died after the doctors treating him failed to identify an infection which eventually spread to his brain. He left his long-term partner of 16 years, Jakki, aged 59, who pursued a successful clinical negligence claim for which she was awarded damages to compensate her for the financial losses arising from John’s death.

The court, however, refused to award the bereavement payment as she and John were unmarried.

Jakki challenged the lower court’s decision in the Court of Appeal. She appealed under the Human Rights Act arguing that she had been discriminated against by reason of the fact that she and John were unmarried.

She argued that this amounted to a denial of the right to her Private and Family Life under Article 8 of the European Convention of Human Rights and that this was in breach of the right to Protection from Discrimination under Article 14 of the European Convention of Human Rights.

The Court of Appeal accepted these arguments and held that the current law was incompatible with the European Convention of Human Rights, highlighting that, what was important in this case was;

”The intimacy of a stable and long term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and partnered cohabitees”.

The future for fatal accident claims

There is no doubt that this case is a welcome step in the right direction towards achieving justice for unmarried couples in fatal claims for bereavement damages. We are currently handling a number of fatal cases for unmarried claimants, who would otherwise have been unable to pursue this additional type of claim.

Until the current legislation is amended by Parliament, the impact of the Court of Appeal’s decision will remain unclear.  However, the Ministry of Justice is currently considering the Court of Appeal’s judgment and is expected to adopt their ruling. A substantial increase in the current level of the award, which stands at £12,980, would also be welcome.

Find Out Where You Stand

Whether you’re married or not, if you would like to learn more about bereavement damages and how to make a claim for a fatal accident, get in touch with our friendly and experienced medical negligence solicitors today.