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Bereavement Damages – A Welcome Addition to the Category of Possible Claimants

Posted on August 27th 2019

The Government is set to amend Section 1 of the Fatal Accidents Act 1976 to allow an award of bereavement damages to be available to a person who has cohabited with the deceased for a period of at least 2 years immediately prior to the death.  This is a welcome change for cohabitees who have previously been excluded from claiming for this award regardless of how long they had lived with the deceased.

The change of law is intended to bring the position in line with the decision made by the Court of Appeal in 2017 who ruled In favour of Jakki Smith who lost her partner of 16 years in 2011. She successfully argued that her inability to claim bereavement damages following the death of her partner was a breach of her human rights in that it discriminated against her on the grounds of her non-marital status and her right to respect for family life.

Jakki Smith’s partner had undergone removal of a benign tumour but died aged 66 from an infection that was missed by medics. Ms Smith discovered that she was not entitled to a cash sum, paid out if a person dies as a result of negligence, because she wasn’t a spouse or civil partner.

Bereavement damages is the payment by law for the grief or trauma suffered by someone who dies due to the fault in whole or in part by another.  For example in an accident or illness at work or a road traffic accident or as a result of medical negligence. The amount of the award is currently the sum of £12,980.00.

Until now the only people able to claim were the husband/wife/civil partner of the deceased; married parents of the deceased if the deceased was a minor or the mother of the deceased if the deceased was a minor and the parents are unmarried.

The change in law will reflect the decision of the Court of Appeal. Given that many couples choose not to get married, the existing law appeared to be unjust as it denied cohabitees the right to claim bereavement damages, especially when they have lived together for several years and in some cases have a family together.

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