Bereavement Damages: Impact On Legacy Claims

In the recent case of Smith v Lancashire Teaching Hospitals NHS Trust & Ors the Court of Appeal found the bereavement damages regime in England and Wales to be incompatible with the European Convention on Human Rights (ECHR).

Overturning the Overturning the , Sir Terence Etherton (Master of the Rolls) held that Section 1A of the Fatal Accidents Act 1976 (FAA) is contrary to Article 8 (Right to respect for private and family life) and Article 14 (Prohibition of discrimination) of the ECHR, to the extent that it prevents cohabiting couples of over two years from being entitled to bereavement damages (currently £12,980).

The Court of Appeal made a declaration of incompatibility under s.4 of the Human Rights Act 1998 (HRA), as it was impossible to interpret the provision to make it compliant with the ECHR. However, the current law will remain in place until it is amended by statute and will still be applied by the courts in its current form.

Despite the need for legislative intervention, insurers may start reserving for cohabitee claims on a precautionary basis in anticipation of a change, and may even begin to factor this issue into negotiations on relevant cases. Publicity concerns in respect of certain claims, for example mesothelioma, may prompt some insurers to consider compensating claimants prior to any legislative change.

In the legacy arena, it appears the impact from a change to the law will be relatively muted. The average age of the claimant in a mesothelioma claim is 72. This average age may reduce further with improved detection rates. The vast majority of the claimants are married or widowed and very few are currently cohabitating with a partner.

It is currently common for a cohabiting couple to marry in the last few months before the claimant dies, although this trend may change. Indeed the likelihood is that cohabitating will increase...