As a solicitor who, over the last 25 years of practice, has worked with families bereaved by the tragedy of fatal road traffic accidents, I have seen my fair share of exasperated faces on the loved ones of those who have died as I have tried to explain to them just what “the system” will allow them to recover following the death of a beloved partner or child.
In recent years, the anachronism that is the Fatal Accident Act (FAA) has been reviled, reviewed and roundly criticised by the courts.
Thankfully, there have been glimpses of light that the Act is now, reluctantly, being dragged into the twenty first century.
In 2017, in the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2)  EWCA Civ 1916 the court of appeal found that failing to include co-habitees (who had been living together for two years or more prior to the death) was incompatible with Article 14 Section 3 of the Human Rights Act. Such co-habitees are already defined as dependants – but excluded from the bereavement payment.
We were briefly delighted by this – but recognised that insurers would be able to continue to resist paying the £12,980.00 award to “eligible” cohabitees whilst the FAA remained unamended.
It should have come as no surprise to us at all that it would take another two years for the lawmakers to propose a Remedial Order making a targeted amendment to the FAA which would allow the “two year qualifying” cohabitee to be eligible for the award.
We do not, at present, have a date from which the Remedial Order will come into force. I am not holding my breath. What we do now know is that the Remedial Order will not have retrospective effect. Therefore, my collection of existing bereaved cohabitee clients thus remained labelled as less bereaved that their married/civil partner counterparts – despite having been with their partners, in some cases, for well over a decade prior to the death. This is notwithstanding that an estranged spouse of many years (from whom no decree absolute was ever finalised) is automatically entitled.
The bereavement award, in and of itself, remains a subject of much debate – both moral and legal.
- Why is it just £12,980.00? How should we value it? What is the right figure?
- Why, if one crosses the boarder to our neighbours in Scotland, is the equivalent award far greater in amount and available to many other categories of beavered relatives (including grandparents and siblings)?
- How can it be that only one single award is payable – to be split between two devastated parents of a child who dies under the age of 18?
- How many times have I had that conversation with the bereaved father of a 19 year old student with no dependants explaining that, in his case, the claim is limited to the value of the clothes the “child” was wearing and the cost of the funeral …
- Surely, in 2019, it can’t be right that the award is still not payable to the father of a child who is deemed illegitimate and the mother receives the full, miserly, figure?
- Why can’t children, (under the age of 18 or otherwise) receive an award to reflect the trauma of losing a parent in a road crash?
In some cases we seek damages for the psychological injury suffered by the bereaved in the form of a “nervous shock” claim, but this is mired in difficulty when trying to satisfy the necessary “nearest and dearest” test, proving that the injury is caused by being “exposed” to the traumatic event or its immediate aftermath – and then trying to prove that the injury suffered is something that goes beyond an “normal” grief reaction.
The courts have tried in the past to enhance or extend the bereavement award by allowing claims for the loss of the care and affection of a spouse or parent (the so-called Regan v Williamson award for loss of “intangible benefits”).
Even the legal basis of even this award has been challenged in recent years with judicial doubt as to its validity being expressed in the Mosson v Spousal (London) Ltd case – but, fortunately, rumours of the death of the Regan award were greatly exaggerated and the more recent cases of Wolstenholme and Grant have offered further comfort that these claims for “loss of society” are alive and well. However, one recent case, Magill, has cast further uncertainty and clearly an authoritative decision from the Court of Appeal would assist.
In other areas, the categories of those who can and cannot claim as dependents in fatal collisions require a complete overhaul. The Law Commission has examined the scope of the FAA previously and recommended that there be added to the list any individual who was being wholly or partly maintained by the deceased.
This would at least fill another outdated gap and perhaps allow the children of cohabitees who are not the children of the deceased (of whom their must now be vast numbers in this country) to bring dependency claims.
The law remains harsh and perhaps grossly unfair. A wholesale review of the Act is long overdue – and don’t get me started on what is or isn’t part of the “reasonable cost of a funeral”!