Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors [2016] EWHC 2208 (QB): the eligibility criteria for a bereavement award are inconsistent with the values of modern Britain

This blog is written by John-Paul Swoboda of 12KBW.

The Court of Appeal’s decision in Smith shone a light upon an inadequacy in the law which clinical negligence lawyers have long been aware of; the criteria to determine eligibility for a bereavement award pursuant to section 1A of the Fatal Accidents Act 1976 is unjustifiably discriminatory. In Smith the Master of the Rolls, McCombe LJ, and Sir Patrick Elias all agreed that section 1A of the Fatal Accidents Act 1976 was incompatible with article 14 (non-discrimination) and that article 8 (right to respect for private and family life) was engaged. A declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 was made.

Section 1A of the Fatal Accident Act 1976 allows for a bereavement award (currently set at £12,980) to be claimed by:

  • a surviving wife, husband or civil partner of the deceased; or
  • by both, or either, parents if the child was legitimate; or
  • by the mother if the child was illegitimate;

from the tortfeasor.

Should there be any doubt about the purpose of section 1A, Lord Scarman’s statement made during the passage of the Administration of Justice Act 1982, which inserted section 1A into the 1976 Act, provides clarity: the bereavement award is compensation for grief. Accordingly, the qualifying criteria pursuant to section 1A of the 1976 Act are used as proxies to determine whether the relationship between a claimant and the deceased was sufficiently close to justify sympathetic recognition in the form of compensation. Given that the bereavement award provides token compensation for grief for those who the State considers likely to have been particularly close to the deceased, the narrowness of section 1A of the 1976 Act is wholly remarkable.

Ms Smith’s case

Ms Smith had lived with the deceased, Mr Bulloch, for 11 years and their relationship was “equal in every respect to marriage in terms of love, loyalty and commitment.” However, Ms Smith did not qualify for the bereavement award as she had not been married to Mr Bulloch. In a tenacious, but (in this author’s opinion) justified attack on section 1A of the 1976 Act Ms Smith argued that the said section unjustifiably discriminated against her right to respect for family life contrary to article 14 and/or 8 of the ECHR. To claim that section 1A of the 1976 Act was discriminatory contrary to article 14 Ms Smith needed to show her complaint with section 1A fell within the ambit of article 8, the right to respect for private and family life.

The Court of Appeal found that, as the state had brought into existence a positive measure (compensation payable to certain grievers) pursuant to section 1A of the 1976 Act, to fall within the ambit of article 8 Ms Smith needed only to show that the said section had more than a tenuous connection with the right to respect for private and family life. In the context of a bereavement award limited to certain family members this was not a difficult task. As the Master of the Rolls stated,

It is apparent from the very fact that bereavement damages are limited in section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement damages are specifically intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners. It inevitably follows that the scheme for bereavement damages is properly regarded as a positive measure, or modality, by which the State has shown respect for family life, a core value of Article 8.

Discrimination against cohabitees is inbuilt into section 1A of the 1976 Act as only married persons and civil partners are eligible for the bereavement award. In arguing that the discrimination was justified the secretary of state sought to persuade the Court of Appeal that cohabitees were not analogous to married persons. This was a surprising argument given that the entitlement to compensation for bereavement from a tortfeasor is not based on the legal status and/or consequences of marriage; rather the legal status of marriage is used a proxy to show that the relationship was intimate enough such that the claimant’s grief should be marked by compensation. This argument was rejected by the Court of Appeal and a declaration of incompatibility made.

The consequences of Smith

It is to be hoped that in finding that section 1A of the 1976 Act created unjustifiable discrimination against cohabitees’ (including Ms Smith’s) right to family life and in making a declaration of incompatibility the Court of Appeal will spur Parliament into reform of section 1A of the 1976 Act. The section is not fit for purpose in modern British society.

The section not only creates a situation where the grief of a surviving cohabitee is valued less that the grief of a surviving spouse but it is unjustifiably discriminatory against the right to respect for family life in numerous other ways. For example, why should it only be mothers who are entitled to a bereavement award where the deceased child is born at a time when the parents were out of wedlock. Does a father’s grief not qualify for the State’s sympathy if he was not married to the child’s mother at the time the child was born? Why should parents whose child was 18 years and 1 day at the time of death not be entitled to the State’s sympathy, but parents whose child was 17 years and 364 days be entitled to the State’s sympathy? Is a parent’s grief for a loss of a child, no matter the child’s age, not nearly always worthy of the states sympathy? Why should the state exclude those people who have acted as parents to children but are not legally the child’s parents? Would it not be more morally justifiable, even if less easy to determine, for the right to compensation to be dependent upon a threshold of love and affection between a claimant and the deceased? The list of inadequacies goes on. Unless and until Parliament acts on the declaration of incompatibility by reforming section 1A of the 1976 Act so it is fit for purpose, the State should not be surprised if further cases are brought where a declaration of incompatibility is sought.

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