Cohabitees, bereavement damages and ‘fake news’

Thu, 14 Dec 2017

Can a cohabitee who has lived with somebody as their husband/wife/civil partner for 2 years or more claim bereavement damages under s.1A of the Fatal Accidents Act 1976 (“the FAA”)? If you read the news coverage following the Court of Appeal’s judgment in Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Ors [2017] EWCA Civ 1916 you would be forgiven for thinking the answer was ‘yes’.

s.1 FAA allows such a cohabitee to claim dependency damages. That right was extended in 1982 at the same time the right to bereavement damages was introduced under s.1A FAA. However, that new right was not extended to cohabitees, a difference that has continued until now even though, as the Court of Appeal noted at paragraph [91]:

“neither in Parliament nor in any evidence before the court has any member of the Government provided any justification for the different treatment”. 

And that difference continues to apply. The result of Smith was a declaration of incompatibility under s.4 of the Human Rights Act 1998. So, whilst the Court of Appeal have agreed that a cohabitee who has lived with somebody as their husband/wife/civil partner for 2 years or more should be able to claim bereavement damages under s.1A FAA, the Court of Appeal have not given that right. The power to do so is Parliament’s alone. Ms Smith was not even able to claim damages for this breach of her rights because where such breaches arise from primary legislation the court cannot award damages.

Parliament could undo the problem by simply repealing s.1A FAA and removing the right to bereavement damages for everybody, although that would seem unlikely. Considering the Law Commission have recommended that bereavement damages be extended to cohabitees since at least 1999 and the Justice Select Committee endorsed this in 2010, it does not appear that the issue is considered a priority. Until Parliament chooses to amend s.1A FAA, the answer to the question will remain ‘no’.

Alex Mellis
No5 Barristers' Chambers
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