Smith v Lancashire Teaching Hospitals NHS Trust &Ors [2017] EWCA Civ 1916

The Court of Appeal has found the bereavement damages regime in England and Wales is incompatible with the European Convention on Human Rights (ECHR).

Overturning the High Court decision, Sir Terence Etherton (Master of the Rolls) held that Section 1A of the Fatal Accidents Act 1976 (FAA) is contrary to Article 8 (Right to respect for private and family life) and Article 14 (Prohibition of discrimination) of the ECHR, to the extent that it prevents cohabiting couples of over two years from being entitled to bereavement damages (currently £12,980).

Whilst cohabitees of two or more years, if dependent upon a deceased, are able to recover dependency damages under Section 1 of the FAA, they are unable to claim bereavement damages under Section 1A.

The Court of Appeal made a declaration of incompatibility under s.4 of the Human Rights Act 1998 (HRA), as it was impossible to interpret the provision to make it compliant with the ECHR.

The Court of Appeal refused the Secretary of State for Justice's application for permission to appeal to the Supreme Court; however an application can still be made to the Supreme Court itself.

The current law will remain in place until it is amended by statute and will still be applied by the courts in its current form. The HRA allows for remedial action to be fast tracked by the Government to amend non-compliant legislation, although this power has been seldom used.

It is perhaps surprising that the legislation hasn’t already been amended, given the need to bring the current law in line with modern attitudes in relation to family life and relationships. Indeed there has been continued support for amendment; Mr Justice Edis in the first instance decision, the Law Commission and the previous Government have all called for the law to be amended.

It may be that consideration is also given to increasing the compensation entitlement when the legislation is amended. In Scotland for example, there is no cap on damages, and claims can be brought by grandparents, siblings and persons who can demonstrate close family ties with the deceased.