The Fatal Accidents Act 1976 (Remedial) Order 2020 (“the Order”) came into force on 6 October 2020. It extended the eligibility for bereavement damages under section 1A of the Fatal Accidents Act 1976 (“the Act”) to cohabiting partners, provided that such partners are able to satisfy the same criteria they currently have to satisfy to qualify for dependency damages under section 1 of the Act.
Before this Order came into place, only a very small group of people were entitled to statutory bereavement damages in England and Wales. It was essentially limited to the wife or husband of the deceased, or, if the deceased was a minor who was never married, the parents of the child. The Civil Partnership Act in 2004 extended this list to civil partners.
Scottish system is different
The position has been very different in Scotland, where a much longer list of “relatives” who can claim exists. This has led to numerous comments over many years that the system was unfair and in need of reform.
The issue came before the Court in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust  QB 804. The Claimant in that case was the unmarried partner of a man who died as a result of clinical negligence. She was entitled to claim dependency damages as a cohabiting partner but was not entitled to claim bereavement damages. She argued that this was incompatible with her human rights. The Court agreed and formally declared section 1A of the Fatal Accidents Act 1976 to be incompatible with the European Convention on Human Rights.
Amended to include cohabiting partners
As a result of the declaration, the Government was forced to legislate to amend the section. It added cohabiting partners to the list of those entitled to claim but used the restricted definition from section 1 of the Act being:
“any person who –
- was living with the deceased in the same household immediately before the date of the death; and
- had been living with the deceased in the same household for at least two years before that date; and
- was living during the whole of that period as the wife or husband or civil partner of the deceased.”
Amendment not applied retrospectively
The amendment only applies to causes of action which accrue on or after 6th October 2020 and is not retrospective. The current statutory award for bereavement damages is £15,120. That is a global amount to be divided between all eligible claimants.
Many hoped that the opportunity would be taken to make further changes and the UK Parliament’s Joint Committee on Human Rights suggested that the Government should look more broadly at the bereavement damages scheme with a view to reforming it further. Unfortunately, that did not happen.
Bereavement damages will always be included in any asbestos disease compensation claim where relevant. It will be considered a head of loss along with all other aspects of the claim.
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