When someone passes away as a result of medical negligence, a small category of people are entitled to claim a statutory bereavement award under the Fatal Accidents Act 1976.

The sum for bereavement damages is currently £12,980, having been raised from £11,800 in April 2013.

Bereavement damages have long been criticised, firstly because the award is very low in the circumstances and secondly because only the following people are able to claim:

  • the husband/wife/civil partner of the deceased
  • married parents of the deceased if the deceased was a minor
  • the mother of the deceased if the deceased was a minor and the parents are unmarried

With more and more couples choosing not to get married, it seems unjust to deny them the right to claim bereavement damages, especially when they have cohabited for several years and have a family together.

This issue has recently been put into the spotlight thanks to a lady called Jakki Smith. She brought a claim against the Secretary of State alleging that her human rights had been breached when she was denied the right to claim bereavement damages simply because she was not married to her partner before he passed away.

The Court of Appeal agreed with Mrs Smith, ruling that the Fatal Accidents Act was incompatible with articles 14 and 8 of the European Convention on Human Rights.

Whilst the Fatal Accidents Act is yet to be changed, it is hoped that this decision will encourage defendants to pay bereavement damages to unmarried cohabitees.

Emily Hartland, a solicitor in the clinical negligence team at Penningtons Manches, comments: “Providing unmarried couples have been cohabiting for at least two years, the surviving partner is entitled to claim for financial dependency on the basis that he or she had previously relied on the deceased to contribute to household bills and expenses. However, advising people that they are not entitled to bereavement damages simply because they are unmarried is very hard and often an additional blow at what is already a very difficult time.

“In the short term it is hoped that this Court of Appeal decision will help persuade defendants to award bereavement damages to unmarried cohabiting couples and in the longer term, encourage a change in the law.”