Many of the personal injury claims on which Penningtons Manches advises involve fatalities. The law governing the damages that can be recovered by those close to the deceased are complex and, in some respects, unfair.

One of the existing anomalies is that a spouse can claim for both dependency on the deceased (practical and / or financial) and a bereavement damages award. A long-standing cohabitee has the same ability to claim for dependency but under the Fatal Accidents Act 1976, the fixed list of those who are entitled to a bereavement damages award does not include non married or non civil partnership cohabitees, no matter how long the relationship.

In Jacqueline Ann Smith v (1) Lancashire Teaching Hospital NHS Trust (2) Lancashire Care NHS Foundation Trust (3) Secretary of State for Justice [2016] EWHC 2208 (QB), the claimant’s partner had died as a result of clinical negligence. The claimant and the deceased had lived together for over 11 years prior to his death. In accordance with the legislation, the claimant made a claim for dependency upon the deceased but considered that the fact she was prevented from recovering bereavement damages was unjust.

The claimant joined in the Secretary of State for Justice and sought to challenge the refusal of the defendant hospital to pay the bereavement damages. She sought a declaration to clarify the provisions relating to bereavement damages under the Fatal Accidents Act, or alternatively, a declaration that the provision in question, section 1A(2)(a) was incompatible with the Human Rights Act 1988. The court held that the fact that section 1A(2)(a) of the Fatal Accidents Act 1976 (FAA) does not permit cohabitees of more than two years to recover bereavement damages does not engage Article 8 of the Human Rights Act partly because the distinction was not held to show that the state considered the grief of a spouse ‘more valuable’ than that of a cohabitee and partly because the lack of a right to compensation for grief was not linked at all to the claimant’s private life and only tenuously to her family life. The court also held in terms of clarification of the existing legislation that the FAA as drafted could not be read to include cohabitees. However, it was recommended that consideration should be given to reforming the law (as already suggested by the Law Commission) as the effect of the section is unjust.

Philippa Luscombe, partner in the personal injury team at Penningtons Manches LLP, comments: “There is no doubt that the existing legislation regarding recovery of damages in the case of fatalities can produce some outcomes that seem very unfair. The most significant example of this is when an elderly person or young adult with no spouse or dependants dies and their family feels strongly that they want to take action against the person or entity that caused the death. In those cases, there can be almost no damages to be recovered – and this can prevent families from taking action despite having a valid case. The situation regarding cohabitees is complex in a number of respects as determination for recovery of dependency will turn on the facts. This case upholds the fact that bereavement damages for those in a relationship requires that relationship to be formalised – and while the possibility of an appeal in this case remains, it seems unlikely the courts will find otherwise. However, as the court here signalled, review of the law in this area is well overdue.”