01 June, 2020
Section 1 (1) of the Fatal Accidents Act 1976 provides a right of action under statute that enables dependents of the deceased, who has died due to the wrongdoing of another, to recover damages. Of course, had death not ensued, the deceased must have been entitled to recover damages in respect of the tortious act. The Law Reform (Miscellaneous Provisions) Act 1943 preserves for the benefit of the estate any action which the deceased could have brought in their own right prior to their death.
The FAA 1976 further provides that every such action shall be for the benefit of the dependents of the deceased and such claims arise due to the loss of dependency.
Until recently, the Act limited such claims to spouses or civil partners in respect of the death of the other. Parents of the deceased in respect of the death of an unmarried, minor child can also claim for loss of dependency.
Earlier this year the Ministry of Justice acted to make bereavement damages available to cohabiting couples. The Fatal Accidents Act, as amended, now enables a person who was living with the deceased as husband and wife or civil partners immediately before the date of the death, and had been living with the deceased for at least two years before that date, to claim such damages. All other categories of dependents are not currently eligible.
The Heads of Loss recoverable under the FAA 1976 are as follows:
The Damages for Bereavement (Variation of Sum) (England and Wales) Order came into force on 1 May 2020. This Order applies to causes of action in England and Wales, which accrue after 1 May 2020, following the wrongful and/or tortious act of a Defendant, which results in the deceased's death. The Order increases the sum awarded for bereavement damages under S1A(3) Fatal Accidents Act 1976 from £12,980 to £15,120.
It is clear that there are a very limited number of people who can claim such damages and, as stated above, the claim is essentially limited to spouses or civil partners, or parents in respect of the death of an unmarried, minor child. There is only one award. Therefore, if both parents are claiming bereavement damages in relation to the death of their child, then the statutory figure is divided between the parents. It should be borne in mind that if the deceased child's parents are unmarried, the father cannot currently claim bereavement damages. Dependents do not currently include the children of a cohabitee with whom the deceased was living with but not married to.
One will note the limited scope of those persons eligible to claim damages under the Fatal Accidents Act 1976. One will also note that there is a clear distinction in the Act between married persons, and/or those who have entered into a civil partnership, with those couples who are cohabiting. The Commons Human Rights Committee have therefore called for further government review of the system, which it states currently discriminates against cohabiting couples, due to the fact that cohabiting couples must have lived together for a period of two years prior to the date of death, in order to claim bereavement damages. There are also references within the Act of children being 'illegitimate' where they are born outside of wedlock or a civil partnership. The Human Rights Committee has therefore called for the government to bring about further reform to the Fatal Accidents Act 1976, in order to ensure that the law in this area is fully compliant with Human Rights law and to ensure that the law adequately reflects the changing times in which we live.
The limited scope of such claims has been challenged in recent years, most notably by the case of Smith v Lancashire Teaching Hospitals NHS Trust and Others  PIQRP4. In this case, the Claimant failed to recover a bereavement award following the death of her partner with whom she had cohabitated for many years. The Claimant was however successful in recovering damages for loss of dependency under Section 1 of the FAA 1976.
The case of Smith highlighted the incompatibility of the Fatal Accidents Act 1976 with the European Convention of Human Rights (ECHR), particularly Article 8 and Article 14 (as confirmed by the Court of Appeal). The Fatal Accidents Act 1976 (Remedial) Order 2020, if implemented, will seek to correct the incompatibility of the Fatal Accidents Act with the ECHR. It is unclear at the time of writing however as to when the Order will be passed. What is clear is that amendments made by this Order will apply only to causes of action which accrue on or after the day on which this Order comes into force. How far the reforms are expected to go however remains to be seen.