Bereavement Damages incompatible with European Convention on Human Rights

In a landmark decision, the Court of Appeal has held that the Fatal Accidents Act 1976 is incompatible with the European Convention on Human Rights ("ECHR").

As part of a successful claim under the Fatal Accidents Act 1976 ("the FAA"), spouses and civil partners are entitled to recover a fixed sum in bereavement damages. Cohabitees are excluded from recovering this statutory damages award, although they could be entitled to "dependency damages" (not a fixed sum) under the FAA, provided they were living together for at least 2 years before the death. However, the position for cohabitees' is likely to change following the Court of Appeal decision in Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others.

In 2011, Mr John Bulloch died following the failure to diagnose an infection (negligence was admitted by the relevant NHS Trusts). At the time of his death, Mr Bulloch had been in a relationship with Ms Jacqueline Smith for 16 years, and cohabiting for 11.

In 2016, Ms Smith brought a claim against the first and second defendant NHS Trusts under the FAA for dependency damages (but not bereavement damages); this claim was compromised and did not progress. Ms Smith then joined the Secretary of State for Justice as a third defendant in order to pursue a claim for bereavement damages. Ms Smith claimed that the FAA was incompatible with the ECHR and sought either:

• A reading of the FAA which was compliant with the ECHR; or  
• A declaration that the FAA was incompatible with the ECHR; and  
• Damages equivalent to the statutory amount of bereavement damages (which were £11,800 at the time of Mr Bulloch's death).  

Ms Smith relied on Article 8 of the ECHR (the right to respect for one's private and family life) and Article 14 (prohibition of discrimination).

In particular, she argued that "private life" (Article 8), includes the right to establish and develop personal relationships. Ms Smith's grief at the loss of her relationship with Mr Bulloch was therefore within the remit of the article. By failing to acknowledge her grief and denying her right to recover bereavement damages, Ms Smith argued that the FAA was incompatible with Article 8. Ms Smith also contended that the FAA was incompatible with Article 14 because it discriminated against those individuals who had chosen not to enter into a marriage or civil partnership.

At first instance, Mr Justice Edis found that the case did not engage, or fall within the ambit of, Article 8 (as the absence of a right to compensation for Ms Smith's grief was only 'tenuously linked' to respect for Ms Smith's family life). The case was therefore dismissed and Ms Smith appealed.

The Court of Appeal found that the scheme for bereavement damages under the FAA did have a link to the "core value" of respect for family life and therefore fell within the ambit of Article 8. However, the Court of Appeal could not read the FAA in a way that extended the award of bereavement damages to cohabitees of more than 2 years; although it did find that there was no justification for the limitation on the availability of bereavement damages under the FAA. On that basis, and because Article 8 was engaged, the court made a declaration of incompatibility.

This case will make it more difficult to rely on the limitations imposed by the FAA, and we can expect to see other claimants seeking similar latitude. We expect the Government to pay close attention, and anticipate that steps will be taken to amend the FAA in the New Year. Insurers should therefore consider increasing existing reserves now to reflect an entitlement to bereavement damages; and should certainly take this into account when looking at new matters involving a death.