Smith v (1) Lancashire Teaching Hospitals NHS Foundation Trust; (2) Lancashire Care NHS Foundation Trust; (3) Secretary of State for Justice

Court of Appeal; [2017] EWCA Civ 1916; 28 November 2017

The substantive claim in this case related to the death of Ms Smith’s cohabiting partner as a result of clinical negligence. Liability was admitted by the first and second defendants and the substantive claim was settled. A declaration of incompatibility was sought in relation to the provisions in section 1A of the Fatal Accidents Act 1976 which govern the award of bereavement damages in England and Wales.

The bereavement damages award is set by Order of the Lord Chancellor, and is currently only available to the wife, husband or civil partner of the deceased; and where the deceased was a minor who was never married or had a civil partner, to his or her parents, if he or she was legitimate; or to his or her mother, if illegitimate. The Court of Appeal held that the provisions of section 1A(2)(a) of the 1976 Act are incompatible with Article 14 read with Article 8 because they deny the award of bereavement damages to a person who was living with the deceased in the same household as an unmarried partner for at least two years prior to the death.

A paper with a draft of a proposed Remedial Order to address the incompatibility was laid before Parliament on 8 May 2019. The Government proposes to amend section 1A of the 1976 Act to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to the death. The proposed amendment also provides that in instances where both a qualifying cohabitant and a spouse is eligible (i.e. where the deceased was still married and not yet divorced or separated but had been in a new cohabiting relationship for at least two years) the award should be divided equally between the eligible claimants.

The Joint Committee on Human Rights published its report on the proposal on 16 July 2019, which the Government is now considering along with Brexit!

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