The right to claim damages for loss of financial dependency and for statutory bereavement damages are set out separately in the Fatal Accidents Act 1976. Only those who fall within the categories listed in the Act are eligible. The courts have consistently refused to widen these statutory categories, most recently in Smith v Lancashire Teaching Hospitals NHS Trust, which was decided on 8 September 2016.
It is difficult now to see any change here without statutory intervention. That looks quite unlikely, given that the Negligence and Damages Bill – a private member’s Bill in the 2015/16 Parliament that sought to effect changes to the law on fatal claims- simply lapsed without Government support.
In Smith, the claimant had cohabited with the deceased for more than two years before his death. She was therefore eligible to claim for loss of dependency under section 1 of the Act. She also sought to claim the bereavement award under section 2, which (ignoring minors for our purposes) is restricted to “the wife or husband or civil partner of the deceased” and therefore excludes cohabitees. She argued that this was incompatible with her rights under the European Convention on Human Rights, specifically articles 8 (right to private and family life) and 14 (prohibition against discrimination). These rights are incorporated into law by the Human Rights Act 1998 (the HRA).
Her argument failed much in the same way as the argument in Swift v Secretary of State for Justice did in 2012. Swift involved a claim for dependency made by a cohabitee of less than two years’ duration and who was therefore ineligible to claim under section 1. Judicial review proceedings were taken against the Secretary of State in which it was argued that the two year restriction infringed rights in articles 8 & 14. That claim also failed.
Giving judgment in Smith this month, Edis J concluded that “The powers of the court under the HRA are broad and important, but they must be exercised with restraint and according to the law. They do not give the court power to seek to reform the law except in very particular circumstances which I have decided do not exist here. It is to be hoped that the outcome of this litigation may provoke some further discussion in Parliament for further legislation which might improve the current state of the law. The necessary provision would be short, probably uncontroversial, and would involve very limited additional expenditure.”
It is probably too early to tell whether his conclusion might give some added momentum to the calls for change in this area. But reform here certainly does not look to have been a Government priority in recent years, as shown by:
- draft legislative proposals not being taken forward back in 2010/11
- no reaction from Government to the final sentence of Eady J’s decision in Swift in 2012 that: “I have little doubt that the law will at some point be changed so as to help others in a similar plight, but that will depend upon the allocation of legislative time”, and
- the lapse of the more recent Private Member’s Bill earlier this year.
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).