In Smith v Lancashire Teaching Hospital NHS Trust & Secretary of State for Justice the Court of Appeal ruled that section 1 of the Fatal Accidents Act 1976 is incompatible with the European Convention on Human Rights in relation to damages for bereavement.

This case concerned the distinction between those who may and may not bring a claim under the Fatal Accidents Act for loss of dependency and/or bereavement damages.

The Court of Appeal in Smith has ruled that the Act’s prevention of cohabitants from claiming statutory bereavement damages is incompatible with article 14 of the European Convention on human rights namely the prohibition on discrimination.

The claimant, Jacqueline Smith lived with Mr John Bullock from March 2000 to October 2011 at the date of Mr Bullock's untimely death. Ms Smith and Mr Bullock were never married, it was accepted by the court that their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment. Mr Bullock died as a result of negligence on the part of Lancashire Teaching Hospitals. Ms Smith sought as a cohabitee to bring proceedings against the NHS Trust under section 1 of the Fatal Accident Act 1976.

The NHS Trust admitted the negligence and the claim was compromised. Ms Smith did not make a claim against the trust for bereavement damages. Instead she joined in the Secretary of State for Justice to the proceedings so that the claim for bereavement damages could be pursued. Expressly stated within the particulars of claim was the fact that the claim for bereavement damages was not made against the NHS Trust because the express terms of section 1A (2) (a) of the Fatal Accidents Act does not extend to two years and above cohabitees.

Sir Terence Etherton, Master of the Rolls, gave a detailed judgment in which he explained

“…the claim is capable of falling within article 14 even though there has been no infringement of article 8. If the State has brought into existence a positive measure which, even though not required by article 8, is a modality of the exercise of the rights guaranteed by article 8, the State will be in breach of article 14 if the measure has more than a tenuous connection with the core values protected by article 8 and is discriminatory and not justified.”

The Master of the Rolls also noted that there was nothing in any Parliamentary material to justify the discrimination complained of. He stated:

“it is plainly material that Parliament has treated 2 years + cohabitees as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purposes of dependency damages, and that neither in parliament nor in any evidence before the court has any member of the government provided any justification for the different treatment of 2 year plus cohabitees under section 1A…”.

The Secretary of State for Justice sought permission to appeal to the Supreme Court, which was denied.

How significant is this outcome?

This judgement reflects the changes in the way in which families in the UK and relationships are made up. Each year the number of couple who are unmarried and live together, increases, as has the social acceptance of cohabitation in lieu of marriage or civil partnerships. With this in mind the courts are clearly keen to enshrine the protection of cohabitees in relation to bereavement and dependency. The Court of Appeal’s declaration is a message to the government that they ought to reconsider the Law Commission's proposals of a revision to the Fatal Accident Act in favour of cohabiting couples.

However, given the confusion and conflation of the European Union and the European Court on Human Rights, it’s likely that the government will not want to be seen to make concessions to “Europe”. Whether it will revisit the Fatal Accidents Act is yet to be seen. Another factor in the decision making process is that, if the government does rectify the incompatibility, it may be faced with a number of claims from former cohabitees who were denied to opportunity to recover bereavement damages in now settled claims.