Government Takes Steps to Widen Bereavement Damages in Fatal Injury Claims

15 May 2019

This week the government have announced plans to increase the categories of people who can claim statutory bereavement damages in fatal injury claims.

When the Fatal Accidents Act 1979 came into force it made provision for the husband or wife (this was also extended to civil partner in 2004) or (if the person was a minor) the parents of a someone who died as a result of a wrongful act to be able to claim a bereavement award. The award was put in place as a matter of public policy, to provide the family of the deceased with some damages in respect of their loss. The bereavement award is currently set, by the Secretary of State, at £12,980.

In recent decades, however, family structures have changed. Marriage is far less common, with many couples preferring to cohabit. As a result, debate has emerged as to whether the categories of person who can claim a bereavement award under the Act are too narrow. This came to a head a couple of years ago, in 2017, when the Court of Appeal heard the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others found the existing categories of person who can claim a bereavement award to be incompatible with the European Convention on Human Rights, as it excluded cohabiting couples.

As a result, last week, the government published a draft remedial order, proposing to amend the Fatal Accidents Act 1979. If approved, the draft remedial order will also mean that partners of the deceased can claim a bereavement award if they had been cohabiting with the deceased for at least 2 years prior to the date of death.

James Braund, specialist Personal Injury and Clinical Negligence solicitor and Senior Associate at Trethowans LLP’s Poole and Bournemouth offices comments that “last week’s announcement by the government has been anticipated ever since the Court of Appeal’s ruling in the Smith case. Assuming Parliament approves the remedial order, the Act will now assist unmarried cohabitees of victims who die as a result of negligence and other breaches, such as those who have been exposed to asbestos and die as a result of a related condition (such as asbestosis, mesothelioma or asbestos lung cancer). It should, however, be noted that the category of people who can claim such awards in Scotland, for example, are far wider still.”