The inability of long term cohabitees or unmarried couples to claim the bereavement award in personal injury cases is incompatible with their human rights: as found recently by the Court of Appeal.

What is the bereavement award?

The bereavement award is a statutory sum of £12,980 payable by a defendant in cases where a person is wrongfully killed by someone else’s negligence. It is provided for by the Fatal Accidents Act 1976. Historically it applied only to husbands and wives on the death of their spouse or parents on the death of their child. In 2004 parliament extended the scope to civil partners. In 2009 the government tabled an amendment which would have added cohabiting couples, who had lived together for two years or more, but this was shelved.

Journey to the Court of Appeal

Mr Bulloch and Ms Smith lived together from March 2000 until 12 October 2011. They never married but were in a committed partnership. Mr Bulloch died as a result of clinical negligence. Ms Smith made a claim against the NHS Trust responsible for her partner’s death and, on the basis that she was ineligible for the bereavement award; she joined the Secretary of State to pursue the bereavement award as well as a declaration of incompatibility with the European Convention of Human Rights 1950 (the Convention). Specifically articles 8 and 14 of the Convention which deal with respect for family and private life and protection from discrimination respectively.

Ms Smith won damages for her financial losses but the high Court Judge found against Ms Smith on the bereavement award because:

  1. article 8 did not require states to have a bereavement regime; and
  2. the discrimination between married and unmarried couples was not sufficiently linked to the right of family and private life and was not sufficiently serious to breach the Convention.

The Judge did however find that there was no justification at all for the regime and also commented that he was in agreement with the proposals to reform the law.

Court of Appeal

The centre of the appeal was about the link between the discrimination and the right to family life. The Court of Appeal concluded that the Trial Judge “must have either misunderstood the nature of the test or reached a conclusion which was not open to him on the facts.”

The Secretary of State did not attempt to argue a justification for the difference as they had done in the High Court. Instead their final gambit was to contend that Ms Smith was not in a comparable position to a widow. This was rejected.

The declaration of incompatibility was made. Damages, equivalent to the bereavement award, were not awarded. Although the Human Rights Act 1998 allows damages where a public authority has acted in a way that contravenes the Convention this does not apply where the public authority was acting in accordance with an Act of Parliament as was the case here.

What happens next?

For Ms Smith she has obtained the declaration of incompatibility if she wants to pursue her bereavement award her only option is the European Court of Human Rights. As for cohabitees, it is probably a little early to set off celebratory fireworks. Although this decision is a step in the right direction the situation will not change for cohabitees until the Fatal Accidents Act 1976 is amended. Clearly the government will now come under pressure to table such amendments but a policy decision will need to be made.  

The case has been covered extensively in the press including the Financial Times Advisor.