Specialist personal injury and clinical negligence barrister Linda Jacobs discusses Smith v (1) Lancashire Teaching Hospitals NHS Foundation Trust (2) Lancashire Care NHS Foundation Trust and (3) The Secretary of State for Justice  EWCA Civ 1916:
The Court of Appeal (the Master of the Rolls, McCombe LJ and Sir Patrick Elias) has considered the eligibility of a cohabiting, but unmarried partner of the deceased in relation to the statutory bereavement award under the Fatal Accidents Act 1976 (“FAA 1976”). The claims against the first and second defendants had been compromised, and the third defendant was joined in the proceedings so the claim for bereavement damages could be pursued. The CA allowed the appeal and made a declaration of incompatibility with Article 14 in conjunction with Article 8 of the European Convention on Human Rights in respect of section 1A of the FAA in that it excludes those who have cohabited for more than two years.
The Appellant and the deceased (who died as a result of admitted negligence by the first and second defendants) cohabited for 11 years. As the Appellant was not married and could not enter into a civil partnership, she was not eligible for bereavement damages under section 1A of the FAA. She did, however, have a dependency claim under section 1(3)(b) on the grounds of having lived with the deceased in the same household for at least 2 years before the date of death.
The Court of Appeal stated “the difference between section 1 and section 1A of the FAA as to the treatment of 2 years + cohabitees is clear, express and intentional and is an ingrained feature of the legislation” [para 97]. The Court of Appeal indicated that it could not extend section 1A of the FAA 1976 to cohabitees of more than two years as it would give rise to policy decisions that the court could not make. Such policy decisions included the length of the qualifying period, and whether more than one person was eligible for a bereavement award.
A declaration of incompatibility under section 4 of the Human Rights Act 1998 does not affect the validity of legislation, and the Fatal Accidents Act 1976 will not automatically change as a result of the declaration of incompatibility by the Court of Appeal. Parliament must decide whether it wishes to amend the legislation, and the Ministry of Justice has indicated that it is considering the implications of the judgment. My view is that section 1A will be amended so that it is consistent with section 1(3)(b), thereby enabling cohabitees of more than two years to be eligible for the statutory bereavement award. However, the question is when, given the heavy Brexit legislative program.