The Court of Appeal has declared that the exclusion of cohabitees from the bereavement damages scheme under the Fatal Accidents Act 1976 is incompatible with the European Convention of Human Rights (ECHR). The government can now be expected to amend the scheme to allow cohabitees to claim bereavement damages, currently set at £12,980. Defendants should review their reserves and any outstanding Part 36 offers.

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Others [2017] EWCA Civ 1916, Ms Smith had lived with her partner for over 11 years before he died. Two NHS Trusts which had been involved in his care admitted negligence. The Trusts settled a dependency claim under s.1 of the Act, which includes cohabitees of at least two years. However, Ms Smith also sought bereavement damages, which under s.1A are limited to spouses and civil partners. She therefore joined the Secretary of State for Justice as the third defendant, claiming that s.1A was incompatible with the ECHR.

The key question was whether s.1A discriminated between married and unmarried partners in their enjoyment of their right to respect for private and family life under art.8 ECHR. Discrimination in the enjoyment of ECHR rights is prohibited by art.14 unless the difference in treatment can be justified.

The Court of Appeal held that the bereavement damages scheme was intended to reflect the grief of losing an intimate relationship. It was one of the state’s chosen means of fulfilling its art.8 duty to respect family life. Under art.14, it therefore had to be implemented in a manner free from unjustified discrimination. Parliament had treated cohabitees of over two years as comparable to spouses under s.1 and had not provided any justification for not doing so under s.1A. The decline in popularity of marriage and the increase in cohabitation was also relevant. The exclusion of cohabitees was therefore discriminatory and incompatible with art.14.

Comment

A declaration of incompatibility does not itself change the law. Any corrective action must come from the government. The most likely response is a swift legislative change to include cohabitees in the existing bereavement damages scheme. Cohabitees with pending claims who had been living with their partner for over two years are likely to seek to delay settlement and/or stay their actions in expectation of this change, meaning that reserves may have to be increased and existing Part 36 offers may no longer be realistic.