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michelle beckett

Posted 13 May 2019
by Michelle Beckett

Change to the law relating to fatal accidents

Women in the sun

Losing a loved one is a particularly distressing time and indeed no amount of compensation can bring back a family member or loved one. However, where their passing is as a result of a wrongful act, negligence or default of another there are certain categories of people that are entitled to claim compensation. These categories are strict and proposals are being reviewed by Parliament to extend these categories in one particular area in an attempt to keep up with trends in society.

The Current Law

This area of law is governed by the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. This change concerns the Fatal Accidents Act (FAA). It is important to note that under the FAA there are two separate elements of compensation that can be claimed and indeed the two elements have different categories of people who are entitled to bring a claim.

  1. Dependency Claim A “Dependant” is a person who relied upon their late loved one and would be entitled to bring a Dependency Claim. This claim would be for compensation for things such as that the Dependant would have relied upon the Deceased for before they passed E.g. a wage, pension or household services.
  2. Bereavement Award – This is separate to the above and is a set one-off payment in the sum of £12,980.

The category of those entitled to bring a Dependency claim (1) is larger than those who are entitled to claim the Bereavement Award (2) and the changes currently being made are in respect of the Bereavement Award.

Currently, those entitled to claim are limited to:

  • The wife, husband or civil partner of the decreased; and
  • Where the deceased was a minor who was never married or a civil partner
    o His parents, if he was legitimate; and
    o His mother, if he was illegitimate

Proposed change

The legislation currently being proposed is to extend the category of people above to include a unmarried partner who had cohabited with the deceased for a period of 2 years or more.

This means that if you have lived with somebody for 2 years or more you will now be entitled to claim the bereavement award should they pass away due to the wrongdoing of another. It is important to note that this change in not retrospective and will only apply from the date that the change to the law is made.

The proposal also amends the law to address the situation when a person has been living with an unmarried partner for at least 2 years and is also still married (being not yet divorced or separated). In this scenario, the Bereavement Award is to be divided equally between the eligible Claimants.

Why this change has come about

In 2017 the Court of Appeal heard a case where a man tragically passed away following the admitted negligence of those treating him. His partner (Ms Smith), who had lived with him for 11 years but never married brought legal proceedings. Ms Smith claimed that she was entitled to compensation for both Dependency (1) and the Bereavement Award (2). The claim for Dependency was agreed.

Even though they had never married, it was accepted that their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment however, the law did not permit her to claim the Bereavement award (2). Ms Smith challenged this under the rights she was entitled to under the European Convention of Human Rights. More Specifically Article 8 (the right to respect for private and family life) and Article 14 (the prohibition of discrimination).

After much legal argument it was determined that the law that did not allow people who had been living together as an unmarried couple for 2 years or more to claim the bereavement award was incompatible with the European Convention of Human Rights.

Summary

When making the decision in the Appeal case for Ms Smith the Judgment pointed to the growing social trends and more significantly the decline in popularity of the institution of marriage and the increase in the number of co-habiting couples. The Order proposed makes steps to update the law to reflect these changing trends.

The draft proposal Order has been submitted under the non-urgent procedure. As such it is laid before Parliament for 60 days, during which time representations may be made. Following this period there will be a further 60 days the draft Order with any revisions will be laid before Parliament. After these time periods it will be considered and voted on by both houses.

For more information or advice, please do not hesitate to get in touch with our experienced team of medical negligence solicitors.

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About the author

michelle beckett

Michelle Beckett

Associate and Solicitor

Associate in the medical negligence team