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Legal battle success sees non-spouse receive bereavement damages (30 November 2017)

Date: 30/11/2017
Duncan Lewis, Legal News Solicitors, Legal battle success sees non-spouse receive bereavement damages

It has been a long-standing issue that those who lose their spouse through clinical negligence receive a lump sum of £12,980 in bereavement damages, but those who are unmarried that lose their partner are not afforded the same legal rights.

A recent case has seen Jakki Smith win her legal battle to receive bereavement damages following the loss of her partner of 16 years. John Bulloch, Ms Smith’s long-term partner, died as a result of an infected wound from a removed malign tumour, when holidaying in Turkey.

Ms Smith says she was shocked to realise how few rights she had as an unmarried partner. Her claim for bereavement damages was declined at the High Court, on the basis that the Fatal Accidents Act (1976) does not compliment the European Convention of Human Rights (ECHR) in allotting damages to partners from an un-married relationship following bereavement.

This led to Ms Smith taking the government to court for breaching her human rights, specifically Article 8 of the ECHR which concerns her right to a family life and Article 14 which accused the government of discriminating against her for choosing to live in an unmarried partnership.

Ms Smith believes that the law should reflect modern day relationships which are not so reliant on marriage. Many partners who lose their loved ones in this way are denied the right to accept damages.

Her challenge was allowed by Master of the Rolls and Records of the Chancery of England, the senior of the three judges, which included Lord Justice McCombe and Sir Patrick Elia. They unanimously agreed to dismiss Mr Justice Edis’ previous ruling denying Ms Smith’s claim for bereavement damages.

Mr Justice Edis was of the view that the ECHR’s legislation did not reflect what is written in the Fatal Accidents Act. It states that if death comes as a result of ‘neglect, ’ as in John Bulloch’s case, then any damages they would have received if ‘death had not ensued’ should go to any dependants of the deceased. This includes:

  • spouse or former spouse;
  • civil partner or former civil partner;
  • parent or ascendant;
  • those treated as a parent;
  • child or other descendant;
  • someone treated as the child of the deceased through marriage or civil partnership;
  • sibling;
  • aunt or uncle of the deceased, or
  • a person living within the same household as the deceased, for more than two years and, critically:

(iii) was living during the whole of that period as the husband or wife [or civil partner] of the deceased.

In passing judgement, Mr Justice Edis acknowledged that there was need for reform; however he was not able to implement this.

The fact that Ms Smith was successful in her appeal and has been recognised as eligible for bereavement damages means it may be time for the government to revisit the 2009 bill drafted in response to The Law Commission’s recommendation for an amendment to include unmarried couples in legislation.

Rebecca Thomas, Director of Clinical negligence at Duncan Lewis comments:

“This case highlights the fact that the Fatal Accidents Act is an outdated piece of legislation that needs to be reformed to reflect the way that we live now. The Government needs to take steps to amend the Act before the UK leaves the EU”.

Duncan Lewis Clinical Negligence Solicitors

The Duncan Lewis Clinical Negligence team has significant experience acting in a vast array of claims including unnecessary surgery claims, accident and emergency failures, GP negligence claims, misdiagnosed fractures and wrongful death claims. They also act for children and adults who have suffered profound and permanent brain, spinal or neurological injuries and associated disabilities as a consequence of failings in medical care in both NHS and private hospitals.

If you believe your doctor has made a mistake and wish to claim compensation or have any questions about treatment you have received, please do not hesitate to contact our team of specialist clinical negligence solicitors on 0333 772 0409.

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