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Justice at last! The fallout from Smith V Lancashire teaching hospitals NHSFT & ORS

Introduction

The case of Smith represents a huge shift in the way the judiciary decide claims arising under the Fatal Accident Act 1976 (FAA 1976).

Prior to this decision, many cohabitees who had been living together like married couples had been denied the right to claim a statutory bereavement award of £12,980 following the loss of a partner. The law had also restricted the rights of parents of unmarried adult children claiming the award.

The law

Section 1A of the FFA states:-

Bereavement

  • An action under this Act may consist of or include a claim for damages for bereavement
  • A claim for damages for bereavement shall only be for the benefit –
    • Of the wife or husband or civil partner of the decerased; and
    • Where the deceased was a minor who was never married or a civil partner –
      • Of his parents, if he was legitimate; and
      • Of his mother, if he was illegitimate 
  • Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.
  • Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant). 
  • The Lord Chancellor may by order made buy statutory instrument… amend this section by varying the sum for the time being specified in subsection (3) above.”

The case

The case, at first instance, had been rejected as Jacqueline Smith, who was suing in her own right and was the surviving partner of John Bulloch (deceased), was a “cohabitee” and not a “dependant” in accordance of the definitions set out in the FAA.

They had lived together from 2000 until 2011, which was when he passed away. This couple were one of many cohabitees who have been living together like a married couple in all but name.

Ms Smith brought a claim against the first two Defendants for their negligent treatment which resulted in death of her partner. Liability was admitted and her claim was compromised. However, she did not claim for statutory bereavement award against the first two defendants. Instead she joined the Secretary of State for Justice as the Third Defendant so that the claim for the bereavement award could be pursued and this was on the grounds that she was a cohabitee of more than two years.

The Decision

The Court of Appeal took note of evidence of the social acceptance of cohabitation and that the UK population sees no difference between marriage and civil partnership, on the one hand, and living together as an unmarried and non-civil partnered couple, on the other hand. However, it was acknowledged that there were certain policy considerations that the Court could not make and these would need to be made by Parliament. These included whether the “qualifying” period for cohabitees would be the same as it would be married couples.

What does this mean? 

This decision if hugely important for personal injury practitioners and those cohabitee Claimant’s considering whether or not to advance claims. Whilst Parliament will need to address the inconsistencies that currently exist with the FAA, this opens up the possibility of award for bereavement damages where couples are not married.

Johnathan Steventon-Kiy, specialist Clinical Negligence Lawyer says,

“Unfortunately, it has been the case that the law regarding fatal accidents has failed to keep up with the way modern society has evolved. This is a huge victory for Claimant’s and is really fair, just and reasonable which is one of the corner stone’s of our law. Much must still be done, particularly, relating to the payment of £12,980 for bereavement which remains shockingly low”.

Johnathan Steventon-Kiy and the Clinical Negligence team at Swain & Co Solicitors regularly win compensation for their clients who have experienced substandard treatment or a failure to provide treatment. If you, a family member or a friend have experienced problems regarding substandard medical treatment contact our team today on 023 92 483322. 

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