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Jakki Smith successfully claimed compensation from a hospital trust that negligently treated her partner, John, for a benign tumour on his foot, which ultimately led to his premature death. However, despite having lived together for 16 years, because the couple were unmarried, she was not entitled to claim for a statutory bereavement award that is available in certain negligence cases.

The award is currently set at £12,980 and is available to a spouse whose husband or wife has died as a result of negligence, and also to the parents of a child who has died, as long as the child was still under 18 years of age at the time of their death. These criteria are strict, and the award is not available under any other circumstances, including for unmarried couples who are cohabiting.

The bereavement award was designed to try and compensate the spouse or parent for the loss of that husband, wife or child in simple monetary terms. Clearly, no amount can sufficiently compensate for this loss, and it is often seen as a crude and unjust figure.

In the High Court last year, it was decided that Ms Smith would not have been able to make a claim for this award, as there was no incompatibility between the Fatal Accidents Act 1976, which sets out the criteria for the bereavement award, and the European Convention of Human Rights. Ms Smith then challenged this decision in the Court of Appeal, and this challenge has been allowed. Although Ms Smith will not receive the award retrospectively, it is important that the Court has decided that the current law breaches the convention of Human Rights, in that it discriminates against those who are not married, and the right to respect for family life.

One issue, which remains outstanding, is that of children being ineligible for the bereavement award on the death of a single parent due to negligence. The law does not even allow for this award in cases where the parent was single due to being widowed, and therefore had previously been married, not cohabiting. Ms Smith argued that there is no longer the same taboo around being unmarried as there once was – this being the case, there should no longer be a taboo around the existence of children from an unmarried relationship, and such children should arguably qualify for a bereavement award if their single parent dies as a result of negligence.

Pryers Solicitors handle a lot of cases involving the death of a person due to medical negligence and personal injury. The bereavement award is a very contentious issue, the criteria for which is quite rightly seen as being very unfair, both by families and solicitors. Although the ruling in Ms Smith’s case is an important one, the law has yet to be amended, and this ruling is only likely to be significant for cohabiting couples.

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