The Court of Appeal has paved the way for a change in the law extending the rights of cohabitees to compensation in fatal accident claims involving the loss of a partner.
Fatal Accidents Act
Under the Fatal Accidents Act 1976 (FAA), a statutory bereavement award is payable in cases where an injured party has died and the deceased’s death was caused by negligence. The award has been subject to periodic review and is currently fixed at £12,980.
Section 1A of the FAA sets out the ‘qualifying persons’ who can claim the award. It limits the class to a spouse or civil partner of the deceased or the parents where that child was a minor. Cohabiting couples are not included and had to date been unable to recover the statutory bereavement award.
Smith v Lancashire Teaching Hospitals NHS Trust
In Smith v Lancashire Teaching Hospitals NHS Trust, a clinical negligence claim, three NHS Trusts admitted the death was caused by their negligence. However, they did not accept the assertion that a bereavement award was recoverable as the Claimant had been in a relationship with and lived in the same household as the deceased for almost 18 years prior to the death.
The Claimant’s case was that section 1A should be read as including cohabitees who were living in the same household for two years at the date of the deceased’s death. This would have made the law consistent with the approach to the quantification of damages in claims for loss of financial dependency and services such as DIY, contributions to childcare and gardening, which under section 1(3) of the Act included cohabitees of two years.
The Claimant alternatively sought a declaration under the Human Rights Act 1998 (HRA) that the distinction and exclusion in relation to the bereavement award was incompatible with the European Convention of Human Rights (ECHR), namely, Article 8, the right to respect for one’s private and family life and Article 14, from discrimination. Part of the Claimant’s case was that the law as it stood implied that the Claimant’s grief was valued less than had she been married.
In rejecting the Claimant’s claim in the High Court, the judge found that it was a matter for Parliament if Section 1A was to include co-habitees and that there were no direct violation of the Claimant’s Convention rights.
However, the judge appeared to struggle to reconcile why such a distinction existed between sections 1A and 1(3) of the FAA. If convention rights had been said to have been violated it was considered that there was no apparent legitimate aim for doing so and the law required reform.
Court of Appeal
On appeal, the Court of Appeal concluded that the judge had been incorrect to find the bereavement damages scheme fell outside the scope of Article 8 of the ECHR. Amongst other matters it noted the scheme was intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners and this was a positive measure by which the State had shown respect for family life, a core value of Article 8.
The Court agreed it was the intimacy of a stable and long-term personal relationship that gave rise to grief, which ought to be recognised by an award of bereavement damages. There was no distinction in the grief between couples that were married or in a civil partnership and those who were unmarried or non-civil partnered cohabitees.
The Court also noted that there is a significant and increasing proportion of the population which is choosing to live together as unmarried and non-civil partnered couples, indicating a degree of social acceptance of the same and that to many, marriage and civil partnership makes no material difference to the way they see their relationships. The Court concluded that no justification had been provided for the different treatment of co-habitees of two years for the purposes of the bereavement award and the Claimant’s appeal was allowed.
The Court has issued a section 4(2) declaration under the HRA that section 1A of the FAA is incompatible with the ECHR. This in itself does not affect the continuing operation of section 1A and is not binding on the parties in the particular proceedings. It does however mean this is now a matter for Parliament to consider reforming to ensure compatibility.