Losing a loved one is one of the hardest things most people will ever have to go through. But losing someone due to the fault of someone else can make that loss all the more harder. Unfortunately that is the reality for many medical negligence cases. Whilst compensation can never replace the loss of a loved one, it is one form of redress that the law offers. However those who are able to claim for such a loss is very limited. But things may now be about to change following a recent ruling by the Court of Appeal in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors.
Under the Fatal Accidents Act 1976, a person can claim a maximum of £12,980 in bereavement damages. However, it may be surprising to know that only a very limited group of people can actually claim this award. One group who can claim bereavement damages are the spouse or civil partner of the deceased. The only other group of people who are able to claim bereavement damages are, both parents of an unmarried child under the age of 18, or in the event of a, ‘illegitimate’ child, only the mother is viewed as being legally bereaved.
Right to claim damages
However, last week Jakki Smith who was an NHS worker, won her legal battle for her right to claim bereavement damages after the death of her long term partner of 16 years. Ms Smith had brought a claim against the Government for breaching her human rights by denying her the right to claim bereavement damages. Originally the High Court had dismissed Ms Smith’s claim but this was overturned last week by the Court of Appeal.
It was argued by Ms Smith that bereavement damages should be available to those people who had been in long term relationships of more than two years. Whilst Ms Smith would not now receive the compensation she campaigned for, as retrospective payments cannot be made, she may have opened the way for a substantial change in the law. Though the Fatal Accidents Act 1976 still remains ‘good law’ and only allows spouses and civil partners can claim bereavement damages, Ms Smith’s appeal has made it possible for people in long term relationships to argue that they should be entitled to bereavement damages too. It can only be hoped that this will eventually lead to a formal change in the statute.
However, while the law may now widen, could and should it go further? Should other groups be allowed to claim bereavement damages? For example siblings, grandparents, a parent who loses a child over 18, for the father of an ‘illegitimate’ child and for a child who loses their parent. Surely the loss that these groups suffer is no wore then a parent who loses a child under 18 or a spouse. To only award damages to a select group of people could be said to be discriminatory.
Another consideration is whether the figure of £12,980 should be re-assessed? Is this figure enough? For many people, this is an extremely low figure for essentially the cost of someone’s life. Many argue that each case should be judged on a case by case basis, and only awarding a flat rate does not take into account the difference of how each individual deals with the loss of a loved one. For many years people and groups such as APIL (the Association of Personal Injury Lawyers) have campaigned that this amount is not a fair representation for a person’s life and the devastation losing a loved one can cause. Under the current law it can actually sometimes work out ‘cheaper’ for someone to be killed rather than be injured by a hospital.
Differences in Scotland
In fact Scottish law departs from English and Welsh law in this respect. Under the Scottish Law Damages Act 2011, there is neither no statutory limit on bereavement damages and ‘immediate family’ can also claim the award. This includes groups such as cohabitees, children, siblings, grandparents and grandchildren. As such, Scottish awards for bereavement damages often dwarf the fixed limit of £12,890 awarded under English and Welsh law as each case is considered on its own merits. Does English and Welsh law therefore need to catch up and be brought into line with Scottish Law?
The Law Commission has previously recommended that cohabiting couples should be allowed to claim bereavement damages and a draft bill in 2009 was actually produced. Though this was quickly shelved and never progressed.
After the Court of Appeal’s decision in Ms Smith’s case last week, it can only be hoped that this was the first step of a long overdue change to the law on bereavement damages, which many already consider to be unfair and not fit for purpose. Whilst changes have been slow, the law now seems to be catching up with the reality of the world today where many choose not to get married but still be in committed and life-long relationships. A change can therefore only be a good thing.