John Cunningham, Chartered Legal Executive, considers a Court of Appeal landmark ruling concerning the right to recover bereavement damages arising from a fatal accident under the Fatal Accidents Act 1976 (FAA 1976).

Following a recent decision by the Court of Appeal, a new law expanding the category of persons eligible to recover bereavement damages following the death of a loved one in a fatal accident will come into force on 06 October 2020.

Bereavement damages amount to a fixed sum of money awarded to specified persons related to the deceased, where the death of the deceased was caused by the wrongful or negligent act of someone else. Until the change in the law brought about by the recent decision by the Court of Appeal, a damages for bereavement claim could be brought only by the husband, wife or civil partner of the deceased; or, where the deceased was a minor who never married, only the parents of the deceased.

The change in the law originated in a Court of Appeal landmark case Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others (2017). Here the Court of Appeal (C / A) decided that the FAA 1976 was incompatible with the European Convention on Human Rights because it limited the category of persons who could claim damages for bereavement. That is to say, the FAA 1976 limited those persons to the husband, wife or civil partner of the deceased or the parents of a deceased minor who never married. The FAA 1976 however, said nothing about cohabiting partners. In the light of the Jacqueline Smith decision and the European Convention on Human Rights, the C / A has now decided that a cohabiting partner may also be eligible for an award of bereavement damages.

For these purposes, cohabiting partner means any person who, immediately prior to the deceased`s death, had been living as wife, husband or civil partner of the deceased for a period of at least two years.

This decision of the Court of Appeal is not affected by Brexit.


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