A recent Court of Appeal decision has highlighted the requirement for English law to develop to take into account the modernising society in which we live.
In personal injury and medical negligence cases for deaths, there are different rules for some elements of the claim.
Although various people can be classed as ‘dependants’ and claim for funeral expenses and loss of dependency, including husband, wife, civil partner, parent, child and a partner who had been living with the deceased for at least 2 years pre-death “as if husband and wife or as civil partners”, the criteria for claiming the bereavement award is much more restrictive.
The loss of dependency includes claims for their loss of wage as well as services in terms of the tasks they did, for example, housework, DIY, childcare, etc.
The statutory bereavement award is a fixed sum, currently £12,980 and is considered to be compensation for grief. Under section 1A of the Fatal Accidents Act 1976 (“the Act”) to receive the statutory bereavement award you must be: –
(a) The spouse of the deceased
(b) The parents of a child (under 18) born to a married couple; or
(c) The mother of a child born to an unmarried couple
Accordingly, whilst unmarried partners could make a claim for funeral expenses and loss of dependency if they fit the criteria mentioned above, they could not claim the bereavement award.
In the recent case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust, a Ms Smith brought a medical negligence claim in relation to the death of her partner, a Mr Bulloch, with whom she had lived for 11 years. As part of this claim she argued that it was wholly unfair that she could not claim the bereavement award because they were not married as their relationship was “equal in every respect to marriage in terms of love, loyalty and commitment.”
Ms Smith argued that the Act was in breach of the European Convention on Human Rights (ECHR) as it affected her right to respect for private and family life (Article 8) and discriminated against her non-married status (Article 14).
The Court of Appeal looked closely at the current law and decided that much has changed in society since the Act was drafted and that the law did discriminate unjustifiably against her, therefore she should be given the statutory bereavement award and the Government should consider revising the Act.
In making this decision the Court of Appeal has opened up the possibility that other people will bring claims alleging discrimination by the Act, such as unmarried fathers, step-parents, etc. but also suggests more widely that other elements of English law will require amending to keep up with society as a whole.
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