The Fatal Accidents Act 1976 (FAA) provides that in situations where negligence was the cause of death of the deceased, claims can be made for bereavement damages. The bereavement award is regarded as a personal injury compensation claim, which allows dependents of the deceased to recover damages as a form of redress for losing a loved one at the fault of someone else. The underlying basis for the award is that the deceased would have brought an action due to the wrongful act, had he survived.
This award of damages is provided by the statue and is currently set at £15,120. There has recently been an update in the law to say who can claim for this award. The award is now payable to the wife, husband and cohabitees of the deceased. The parents of the deceased will be paid if he was an unmarried, minor child.
This article will explore the FAA 1976 in detail and address the recent changes in the law, namely, the increase in the statutory Bereavement award and the extension to the scope of the award, to include cohabitees. The reason for the change in law will also be explored to highlight the importance of the long-awaited amendment as it brings the law in line with societal attitudes towards cohabiting relationships.
Fatal Accidents Act 1976: A closer look
In order to bring an effective claim under FAA 1976, the deceased, should he have survived, must have been able to bring a claim in respect of the defendant’s wrongful act. The defendant’s wrongful behaviour must have also been the cause of the deceased’s death. If the deceased merely suffered from a serious injury due to the defendant’s wrongful acts and later died from an unrelated and unconnected incident such as suicide, there will not be an available claim under the Act.
Furthermore, the bereavement damages are also subject to the same contributory negligence arguments that a claim for negligence by the defendant would have faced. This argument would arise when the deceased is partly to blame for his death as he failed to exercise reasonable care for his own safety. Under such circumstances, the available claim for damages is reduced.
Subject to the earlier points made, the FAA offers three heads of losses that could give rise to a potential claim: funeral expenses, if not claimed on behalf of the estate; the claim for loss of income and services dependency and bereavement damages.
For funeral expenses, they are only applicable if they have not been claimed on behalf of the estate. Under funeral expenses, a party can claim the cost of the wake, memorial service and headstone.
With regards to the second head of loss: the claim for loss of income and services dependency, dependants who depended on the deceased’s wages and any additional services the deceased provided can recover the financial loss by way of compensation. The courts, when awarding a dependant, will consider the age of the dependent, how long the deceased would have been able to provide the benefit or service for and the size of the lost income. The final head of loss would be bereavement damages, which will be explored in further detail below.
Recent Change in the Law: Increased Statutory Bereavement Award
On 1 May 2020, the bereavement award paid under the FAA was increased from £12,980 to £15,210, seven years after the last increase. This was a result of the Government’s review of the bereavement award by the Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020. The review was triggered by significant lobbying by organisations, such as the Association for Personal Injury Lawyers (AIPL), who advocated that the bereavement amount was far too low. A similar situation was observed in Northern Ireland with campaigners, leading to an increment in the bereavement award to £15,100 in April 2019. As such, it is positive that England and Wales have followed suit and is now in line with Northern Ireland in terms of the bereavement award amount.
It is interesting to note that the law in Scotland differs from that of England and Wales and Northern Ireland. The bereavement damages in Scotland are considered on a case-by-case basis. Many have expressed their opinion towards this and hold that it is a fairer approach when compensating those who have lost a loved one due to the wrongdoing of another.
Recent Change in the Law: Expansion to Include Cohabiting Partners
In 2017, the limited scope of the FAA 1976 came into question in the case of Smith v Lancashire Teaching Hospitals NHS Trust and Others. The case involved Jacqueline who, following her partner’s death, brought a claim of clinical negligence. The issue was that Jacqueline was not married to her partner, but they had cohabited for 11 years. The Court of Appeal highlighted that the limitation of the claimants eligible for a bereavement award was contrary to the European Convention on Human Rights and expressed their view that Jacqueline had met the criteria needed to qualify for the award even though she and her deceased partner were not, in fact, married.
The FAA 1976 (Remedial) Order 2020, which has recently come into force on 6 October 2020, provided us with clarity regarding the possible claimants and extended the scope of the award to include cohabitees who have been living together for a period longer than two years. As such, the definition also applies to same-sex relationships. However, it is essential to note that this change will not apply to past decisions made and will only apply to all deaths that occur after this date.
Many have celebrated the expansion of the law as it has helped to modernise the law to reflect modern relationships. With time, social values and norms change and cohabiting with a partner has become increasingly common and acceptable. When the Act came into effect in 1976, traditional marriages were viewed as the only acceptable family arrangement in society. However, following the changing patterns of family life and the recognition of civil partnerships under the Civil Partnership Act 2004, there was a further need for the law with regards to bereavement damages to reflect the changes in social attitudes towards cohabiting. The update in the law reflects a step forward being taken to harmonise the rule on bereavement damages with other policies that legally recognise cohabitee relationships.
Expanding Categories: Is the law sufficient?
Despite the recent expansion in the categories of individuals who can receive bereavement damages under the FAA 1976, the law still does not address the anomaly of ineligible children and remains discriminatory against certain close family members.
Section 1A of the FAA still makes references to children as being illegitimate, effectively distinguishing between legitimate and non-legitimate children. The statutory language stigmatises illegitimate children and has been flagged by the Joint Committee on Human Rights as inappropriate, hence, an area that should be taken into consideration by the Government for reform.
Also, the FAA continues to be discriminatory against certain close family members that arguably should be included in the list of potential claimants. In particular, the statutory framework continues to disregard fathers who are unmarried. With regards to these children who are born outside of marriage or civil partnerships, only the mother is eligible to claim bereavement damages. This discrimination against male cohabitees seems to be unfair as they are in an analogous position to the mother, who is an eligible claimant. The law also fails to take into account the suffering of grandparents and grandchildren who are also an excluded class under the FAA 1976. It is wholly reasonable to expect these family members to be grieving just as much as the wife/husband, cohabitee or parent of the deceased and as such, should justify them having a bereavement award available to them.
With the recent changes to the FAA 1976, it seems to be a celebratory moment as the law expands the categories of potential claimants and increases in the sum of damages available to them. This had brought the statutory bereavement award framework in line with societal views on cohabitee relationships. Even though this is a significant step forward for the statutory framework regarding bereavement awards, further reforms are required to address the anomaly of illegitimate children and the discriminatory effect that it has over male cohabitees. Also, the Government should also consider whether the Scottish model of assessing the amount of damages award on a case-by-case basis is a fairer alternative to the lump sum model which is currently used in England, Wales and Northern Ireland.
This guide is intended for guidance only and should not be relied upon for specific advice.