The death of a family member following a fatal accident is a traumatic time for all concerned. The legal authority to bring a Fatal Accident Claim for the death of a family member is currently governed by the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
The Fatal Accidents Act 1976 makes it possible to claim compensation for the death of a family member in respect of a wrongful death. It entitles certain people to make a claim for death compensation in order to reflect their loss of financial dependency on the deceased. The categories of people entitled to claim could include the deceased’s spouses, civil partners, and children. However, the number of dependants is not fixed; it could extend beyond immediate family to siblings and grandparents.
The dependents are usually the deceased’s next of kin, so the fatal accident claims are usually made by the same people. Dependents are able to claim for any loss of any dependency, including:
- Funeral expenses
- Bereavement award
- Dependency loss – the loss of financial support and services from the deceased, which the dependant was subject to prior to the death of a family member
Bereavement Award
Under the Fatal Accidents Act 1976, a Bereavement Award is a personal injury claim made following the unlawful death of a person at the fault of another. Entitlement for a Bereavement Award is calculated on an individual, case-by-case basis. To qualify for a Bereavement Award, a claimant has to show they fall within a particular class of persons entitled and highlight how they have suffered or are suffering a loss.
Bereavement damages are most often paid where you may also hear the words ‘unlawful killing’ or where the death has occurred due to a criminal offence, such as murder.
The Bereavement award is a payment of £12,980 to certain relatives of the deceased, limited to the deceased’s wife, husband, or civil partner. The exception to the strict criteria is where the deceased was a minor, in which case the deceased’s parents may be entitled to a bereavement award.
The UK fatal accident compensation amount of the Bereavement Award has increased over the last few decades, and historical figures for the Bereavement Award are:
- £3,500 to £7,500 – 1 April 1991
- £10,000 – 1 April 2002
- £11,200 – 1 January 2008
- £11,800 – 1 January 2012
- £12,980 – 1 April 2013
- £15,120 – 1 May 2021
This provision has been widely criticised, particularly in light of ‘the number of cohabiting couple families has increased faster than a married couple and lone-parent families, with an increase of 25.8% over the decade 2008 to 2018’ according to the Office for National Statistics. It is our firm belief that when a couple has cohabited for years and may even have started a family together, it seems unjust to deny them the Bereavement Award solely on the basis that they have not entered into a legal marriage. As reported by the BBC, the Law Commission previously suggested ‘cohabiting couples should be eligible for bereavement damages’.
Dependency on Children in Fatal Accident Claims
The legal system sparks a grave injustice where children are killed in an accident, where it is another’s fault. Most such cases involved fatal road accidents where the child is a passenger in a vehicle.
The law ignores children from a death compensation point of view. It is as though they are worthless. A child who is tragically killed in a road accident or other equally tragic event where the death or unlawful killing was the fault of another, the compensation for dependency is usually the following:
- Bereavement award
- Funeral expenses
- Damage to personal items such as clothing
- Compensation for any pain and suffering prior to death
Due to the child’s age, there is often no financial dependency upon the child by the parents or guardian responsible for looking after him/her, and thus the loss of a child is quite often valued at £NOTHING, subject to a bereavement award. It truly is remarkable that this law is still in place today.
Death of a Wife or Mother
Most of the above has concentrated on the principal breadwinner of the dependants following a fatal accident claim. The wife is normally a second source of income for the family, so this loss of income must be taken into account, and, more importantly, the loss of services the wife has gratuitously rendered to the family.
The husband’s claim for dependency following a fatal accident is similar to the wife’s, in that an annual net money loss is calculated, taking into account the wife’s earnings and the cost of employing a housekeeper or other helper. This would include, if necessary, a sum for board and lodgings, additional school costs, etc. The next stage is to deduct any pecuniary gain that the husband might receive as a result of her death, such as those costs necessary in supporting his wife. The final stage is then to apply the multiplier.
However, the services of a mother to her children cannot simply be compensated by the employment of a housekeeper, a leading legal academic states:
“It may be argued that the benefit of the mother’s personal attention to a child’s upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has, in the long run, a financial value for the child difficult as it is to assess.”
This statement has been approved in court in a fatal accident claim where it was said that the wife does not work fixed hours; she is on call constantly. The judge raised the value of the wife’s services from £12.50 to £20.00 per week (this was an old case decided in 1976). Guidance on the assessment of a mother’s services to a young infant can be found in the Court of Appeal’s decision of 1988. In this fatal accident case, a three-year-old girl was awarded £25,000 for the loss of her mother’s services following a fatal road traffic accident in 1979. Today, this award will be significantly higher.
In 1988 a Judge awarded a 12.5 year old child at the time of the accident £22,500 pa with a mulitplier of 5 a total of £112,500. A significant increase in the court’s award compared with the previous fatal accident cases at the time, but one which appears to be the current trend.
Fatal Accident Compensation for Cohabitees
As the Law stands, cohabitees are not able to claim a Bereavement Award under the 1976 Act. However, as cohabitation is becoming increasingly regular amongst couples in the UK. The law is gradually adapting to accommodate these changes in the usual household dynamic and to provide greater protection for cohabitants; however, there are no immediate legal rights for cohabitants.
When a long-term partner and cohabitee passes away at the fault of a third party, the Fatal Accidents Act 1976 makes it possible for cohabitees to claim death compensation if they fulfil certain criteria;
- That they were living with the deceased in the same household immediately before the date of the death.
- That they had been living with the deceased in the same household for at least 2 years before that date.
- That they were living during the whole of that period as the husband or wife or civil partner of the deceased.
However, a person seeking to make a claim under the Fatal Accidents Act 1976 is not only required to prove that they are living with the deceased but equally the permanence and stability of the relationship with the deceased. Evidence of the stability of a relationship includes shared bills, bank accounts, and other household arrangements.
Equally, to the internal nature of the relationship, the external nature will also be relevant; in other words, the nature in which the relationship was presented publicly as living together in a long-term, sustained relationship. Brief periods of absence will not break the continuity of cohabiting if it is found that the deceased and the claimant did cohabit regularly.
Legal Challenges for Fatal Accident Compensation for Cohabitants
The Law on Fatal Accident Claims after the death as a result of a third party may be set to change in relation to cohabitees after a recent ruling in the Smith v (1) Lancashire Teaching Hospitals NHS Foundation Trust (2) Lancashire Care NHS Foundation Trust and (3) The Secretary of State for Justice [2017] EWCA Civ 1916.
In the case of Ms Jakki Smith, the claimant and the deceased Mr John Bulloch cohabited as man and wife between March 2000 and his death on 12 October 2011. Mr Bulloch died as a result of the medical negligence of the first and second defendants. The defendants admitted the negligence but claimed that Ms Smith was not entitled to the Bereavement Award as the couple never officially married.
Ms. Smith’s legal team argued that in denying cohabitees from claiming the Bereavement Award, the High Court ruling dismissing her claim breached Article 8 and Article 14 of the European Convention of Human Rights. Ms Smith argued that the legislation discriminated against her as an unmarried woman. As Article 8 protects the right to respect for private and family life, home and correspondence and; Article 14 requires that all of the rights and freedoms set out in the Act must be protected and applied without discrimination; the law needs to take into consideration that cohabitation can and does give rise to intimate and long-term relationships which stand to be compensated for the grief experienced when one party dies due to the fault of a third party.
The Court of Appeals issued a section 4(2) declaration of incompatibility under the Human Rights Act 1998 to the effect that section 1A of the Fatal Accidents Act 1976 is not in accordance with the European Convention of Human Rights. This, in itself, does not change UK law; it paved the way for Parliament to amend the legislation through a joint committee reviewing the Fatal Accidents Act 1976 with regard to cohabiting couples. On 8 May 2019, the Government laid a draft Remedial Order to remedy the discrimination. However, as it stands, cohabitees are not entitled to a Bereavement Award.
Claiming Compensation For The Death of a Family Member
The law on the rights of cohabitees when one dies in an accident found to be the fault of a third party is gradually coming into line with the dynamic of modern families and the social acceptance of the legitimacy of cohabiting couples. Cohabitants may claim compensation for loss of dependency provided they can demonstrate that they lived in the same household as the deceased. Each case is judged with its specific details, but primarily, the claimant must demonstrate that they were in an internally and externally stable relationship of sufficient permanence to be eligible. Currently, the Bereavement Award is not available to cohabitants; however, this will change, though the timeframe for its inclusion in the law remains undetermined.
Contact us to find out more about your death compensation options.
