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Changes to bereavement claims a step in the right direction

Reforms to the Fatal Accidents Act now allows for unmarried cohabitees to claim bereavement damages following the death of a loved one – Associate Solicitor Philip Austick comments on how the change could impact on clients, and whether the changes are enough.

The reform to this provision in the Act, which came into effect on the 6th October 2020, followed criticism of the existing restriction on the class of persons entitlement to recover such an award under the Act was incompatible with Human Rights of that class of individual in a modern society, where relationships without marriage should be recognised in a fatality claim.

The change to the Act will now allow this class of individuals who have been denied this award of damages to be compensated for the loss of their loved ones and to bridge the divide in this area.

The criticism by the court in the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Others led to the reform and the law being changed.

In Smith, the judge, bound by the Act, refused to award bereavement damages to a claimant who was the surviving unmarried partner of a man who died as a result of the negligence of the hospital.

On appeal, the Judge commented that the existing law was in need of reform because it did not recognise bereavement damages for a cohabitee and was incompatible with Articles 14 and 8 of the Human Rights Act 1998.

The Fatal Accidents Act 1976 (Remedial) Order 2020 now allows a cohabitee the same rights as a wife or husband or civil partner of a deceased, to recover bereavement damages.

Such damages are recoverable where the cohabiting partner was living with the deceased in the same household immediately before the death and had done so for at least two years before the death, as the partner of the deceased.

It has long been argued that there is no difference, when it comes to damages, between a couple who have married, or entered into a civil partnership and a couple who have shared a loving relationship over many years and have lived together in the same way as a married couple or civil partners.