March 20, 2020

Fatal Accidents Act: Sum awarded for bereavement damages to increase

On 19th March 2020, the Damages for Bereavement (Variation of Sum) (England and Wales) Order was laid before Parliament. The Order will come into force on 1st May 2020, and will apply only to causes of action in England and Wales which accrue after that date. 

The cause of action, provided for by the Fatal Accidents Act, allows the dependants of a deceased (as defined by the Act) to make a claim for the award of bereavement damages following the wrongful act of a defendant; on the proviso that the deceased, had they survived, would have been entitled to maintain an action in respect of the wrongful act of the defendant.  Such a claim for bereavement damages would also be subject to the same defence and contributory negligence arguments that a claim by the deceased may have faced.

The Order will increase the sum awarded for bereavement damages under S1A (3) of the Fatal Accidents Act 1976 from £12,980 to £15,120. This brings England and Wales in line with Northern Ireland where the amount was increased to £15,100 in May 2019.

A copy of the Order can be found here.

The Fatal Accidents Act 1976 (Remedial) Order 2020

The Remedial Order correcting the incompatibility of the Fatal Accidents Act with the European Convention of Human Rights, resulting from the decision in Smith v Lancashire Teaching Hospitals, remains outstanding.

The Act, when amended, will allow damages to be recovered by “the cohabiting partner of the deceased” under Section 1A.

“Cohabiting partner” is defined as any person who:

  • Was living in the same household immediately before the date of death of the deceased
  • Had been living in that household for at least 2 years before the date of death
  • Had been living during that period as “the wife or husband or civil partner of the deceased

It is unclear when the Order will be passed, but it would not be unreasonable to expect the changes to be made before the end of 2020.

The Order also makes clear that only those “causes of action which accrue on or after the day on which this Order comes into force” will be caught by the changes, meaning that some cohabitee claimants who fall within the definitions, may not benefit from the changes..