Death “Discrimination” – No Change!

Last week, the Government published its response to a proposed Remedial Order to amend the Fatal Accidents Act 1976 and failed to make any changes.

Currently, the Fatal Accidents Act provides for a widowed spouse or bereaved child who is under 18 to claim a fixed sum of compensation if the death was caused by a wrongful or negligent act or omission. This, however, means that the law does not recognise many relationships as warranting the right to compensation for the loss of a loved one. As a cohabiting adult, neither my partner nor my parents would have the right to compensation should my death be the fault of another – a very sobering thought!

In November 2017, the Court of Appeal heard the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust. Ms Smith had been cohabiting with Mr Bulloch prior to his death on 12 October 2011. Although not married, they lived as husband and wife. Ms Smith did not have any right under the Fatal Accidents Act to claim damages from the NHS and so brought a claim that the Fatal Accidents Act was not compatible with the Human Rights Act. On appeal, the Judge found that the Fatal Accidents Act did discriminate against Ms Smith in contravention of her Human Rights.

This paved the way for a Remedial Order to be presented to the Government in May 2019 to amend the Fatal Accidents Act. The proposed amendment extended the right to claim bereavement damages to claimants who had been cohabiting with the deceased for at least two years prior to the death.

Last week however, the Government reported that it had not found the existing provisions to be discriminatory. It stated that bereavement damages are “simply a token award in acknowledgement of grief”.

The amount of fixed compensation claimable was set at £12,980 in April 2013 and remains so – the amount having increased by just £2,980 in nearly 15 years. In Wales and Northern Ireland, the fixed amount is higher; and in Scotland, compensation is assessed on a case-by-case basis.

It came as a disappointment to many groups, including the Association of Personal Injury Lawyers, that the Government has failed to make any changes to recognise cohabiting couples, despite marriage rates remaining at an all-time low, meaning many remain unentitled to compensation for the death of a loved one even where negligence can be proven.

 

-Rachel Eagle