Court of Appeal recognises cohabitees right to clinical negligence compensation

Posted on: December 6th, 2017

The Court of Appeal has ruled that the loss of an unmarried partner due to negligence should be compensated in the same way as losing a spouse or civil partner. Sue Bowler, who specialises in personal injury and clinical negligence claims, says the decision ‘fundamentally’ changes the law for cohabiting couples and redresses the balance in favour of those bereaved by negligence.

Ms Smith and Mr Bulloch had lived together as husband and wife for 11 years before he died aged 66 in 2011. Medics missed an infection which spread to his brain, which killed the retired prison governor. Ms Smith’s claim against the NHS Trust responsible for the negligence was settled. However, her claim for bereavement damages, which was then fixed at £11,800 and is now £12,980, was rejected because she was neither Mr Bulloch’s wife nor civil partner.

Ms Smith launched her legal fight against the Justice Secretary to improve the rights of unmarried couples. Her lawyers argued that this was in breach of her human rights because it affected her right to respect for family life and discriminated against her because of her non-marital status.

She lost in the High Court but succeeded in the Court of Appeal.

This case recognises that the loss of an unmarried partner due to negligence should be compensated in the same way as losing a spouse or civil partner. It also shows that the Court of Appeal is not afraid, in appropriate circumstances, to declare that English legislation contravenes the European Convention on Human Rights.

The Law Commission had previously recommended that cohabiting couples should be eligible for bereavement damages, and the government produced a draft bill in 2009, but that was shelved. Again, this case highlights that the Court of Appeal is not afraid to intervene to resolve these sorts of issues when they arise.

With the percentage of unmarried couples is ever increasing, having to tell a client who has been bereaved that the law doesn’t recognise the status of their relationship and they have no right to the bereavement award is very hard and only adds to their grief. That will now change for those who have been living together for at least two years.

This judgment has fundamentally changed the law and shows that the courts are reflecting 21st century society by continuing to accept and extend the rights of unmarried couples.

It remains to be seen whether the application will be referred to the Supreme Court but if it is, there will be further delays while the appeal is heard, and if Ms Smith loses, her lawyers said in the Court of Appeal that she reserves her right to go to the European Court of Human Rights.