High Court calls for Parliament to rethink bereavement damages and cohabiting couples

In the recent case of Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) the court found that whilst a failure by the Fatal Accidents Act 1979 to award bereavement damages to couples who live together, but are not married, does not directly engage Article 8 (right to family life and privacy), as a point of principle this distinction could not be justified and Parliament should consider reforming the law.

The case

The claimant had been in a relationship, living with the deceased between March 2000 and the date of his death on 12 October 2011. Liability was not in dispute as the defendants had admitted that the death was caused by their negligence.

The claimant sought a declaration that the bereavement damages provision in section 1A of the Fatal Accidents Act 1976 should be interpreted to allow her compensation; alternatively, she applied for a declaration that the provision was incompatible with the Human Rights Act 1998. Her justification for this was that her entitlement stemmed from her right to respect for her private and family life (Article 8) and that a failure to recognise this would amount to discrimination under Article 14 on the grounds of her “other status” as an unmarried partner.

Justification

The court held that in order for Article 8 to be directly engaged the claimant needed to show a direct and immediate link between the restriction and her private and family life. It was noted that the just because the family life had ended did not mean that Article 8 could not be engaged. However, the court felt that it would extend the reach of Article 8 too far to hold that the payment of bereavement damages fell within its ambit.

In coming to this decision the judge considered the legislative history of the Fatal Accidents Act in some detail. He noted that when the amendment was made to extend dependency claims to cohabiting couples, Parliament did not consider the distinction between dependency and bereavement damages.  Therefore, for reasons not explained by Parliament, cohabiting couples were treated differently under section 1 and section 1A.

When the courts interpret statutory provisions, they try and reason out Parliament’s intention and look for the meaning behind the law. In this case, the court opined that the distinction must flow from Parliament’s desire to construe bereavement damages more narrowly than dependency, so as to avoid an overly intrusive enquiry into the relationship between the parties. Such an enquiry may be appropriate in the case of dependency claims which are purely financial, but bereavement damages are meant to compensate for the grief and suffering for the loss of a loved one. The court had to conclude that the distinction was made for a reason and there was no intention to imply that the denial of the award meant that grief felt by cohabitees is any less valued by the State in comparison to married couples.

Some thoughts of my own

When a loved one passes away it is always a difficult time. Compensation is often not a priority, but if there is a case the last thing you expect to be told is that you are not entitled to a certain form of damages just because you were not married to your partner.

In law cohabiting couples have often received a raw deal simply because our legislature cannot keep up with changes in social convention. What makes this case particularly interesting is that the Fatal Accidents Act does recognise a cohabiting couple’s right to bring a claim for dependency damages, but then makes an arguably arbitrary distinction when it comes to bereavement damages. Although it was held that Articles 8 and 14 were not engaged, the judge went on to reflect on the arguments put forward by the Secretary of State when justifying the distinction. The judge concluded that “If I am wrong about the engagement of Articles 8 and 14, I do not believe that the Secretary of State has established that the difference in treatment between the claimant and a widow in her position is justified” [paragraph 109 of the judgment]. So, whilst it may not have been the underlying intention of Parliament to create the impression that cohabitees are less valued, they have done exactly that.

With such a powerful statement by Mr Justice Edis, and with the House of Commons debating the emotional effect that the loss of a child can have on family members, perhaps it is time for a rethink on bereavement damages as a whole so the issues surrounding the amount and who can claim are brought into the 21st century.

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