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Cohabitees and bereavement damages – moving towards a level playing field?

1 December 2017

The Court of Appeal in the case of Smith v Lancashire Teaching Hospitals and Others (2017) EWCA Civ 1916 has handed down a landmark judgment this week in respect of cohabitees’ rights to claim bereavement damages under the Fatal Accidents Act 1976.

The Claimant, Ms Smith, as a cohabitee, was unable to claim bereavement damages (as afforded under the Fatal Accidents Act 1976) following the untimely death of her partner, Mr Bulloch; even though she had been Mr Bulloch’s partner for 16 years. Mr Bulloch sadly died as a result of a serious infection following surgery in Turkey, (which medics had not noted).

The Claimant pursued her claim against defendants including the Secretary of State for Justice, arguing that the provisions of the Fatal Accidents Act 1976 breached Articles 8 (right to family life) and 14 (protection from discrimination) of the ECHR. On appeal, the Court of Appeal agreed and made a declaration of incompatibility.

As a result it is likely the matter will be referred to Parliament to consider whether there should be a change in the law to enable a wider category of family members, including cohabitees, to recover a bereavement award.

This decision of the Court of Appeal is an encouraging sign that cohabitees may see a change in the law to reflect more modern living arrangements. However, the Fatal Accidents Act draws a distinction between the very limited category of family members who are currently entitled to a bereavement award, and the wider category who have a right of action as a dependant. The question for the government will be: how far are they expected to go to ensure that there is no discrimination between those who are entitled to an award, and those who are not?

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