15 March 2018
In the case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others [2017] EWCA Civ 1916 the Court of Appeal in England and Wales recently held that bereavement awards should be extended to cohabitants in circumstances where the parties to the relationship had been cohabiting for two years prior to the deceased’s death.
In Smith, the claimant and her partner had been living together for some 11 years prior to his death which arose as a result of clinical negligence. She was unable to make a claim for a bereavement award under the Fatal Accidents Act 1976 (“the Act”) as the Act only extended such awards to the surviving wife, husband or civil partner of the deceased person or, where the deceased was a minor, his or her parents.
The claimant argued that this distinction was incompatible with the right to family life enshrined in Article 8 of the European Convention on Human Rights (ECHR) and, as a consequence, this breached Article 14 (prohibition on discrimination). The Court of Appeal found that the distinction in the Act was incompatible with the ECHR and that there was no justification to discriminate against such long-standing co-habitees, particularly when they would have been entitled to make a claim for dependency. The Act therefore requires to be amended to bring it in line with this decision.
The Scottish equivalent of a bereavement award is more generous. Under the Damages (Scotland) Act 2011, a claim for loss of society (the broad equivalent of a bereavement award) can be made by ‘immediate family members’. Its purpose is to compensate them for the distress and grief caused by the death of their loved one and for the loss of society of the deceased.
The Damages (Scotland) Act 2011 defines immediate family as spouses, civil partners, cohabitants, parents, children, siblings, grandparents and grandchildren. The net is cast far more widely in Scotland on who can potentially make a claim. This sits in stark contrast to the limited class of claimants who can claim a bereavement award in England and Wales.
The other point which Smith serves to remind us of is that, unlike the situation in England and Wales, the level of a loss of society award in Scotland is not fixed by statute and instead has developed through case law. The tariff in England & Wales is now capped at £12,980 for all claimants cumulatively.
Recent cases in Scotland have seen a marked rise in awards in fatal claims. For example, the highest award made to date to the surviving partner of a deceased person was an award by a jury of £140,000 in Anderson & others v Brig Brae Garage Ltd, 2015.
The result is that loss of society awards are higher in Scotland than their nearest equivalent south of the border, and significantly so. It is therefore apparent why Scotland is considered to be an expensive forum and Smith serves a pointed reminder of that fact.
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Rhona McKerracher |