However, MPs and peers on the committee warned the bereavement damages scheme could be susceptible to further human rights challenges. They suggested removing the two-year requirement and removing references to ‘illegitimate children’. They warned the order might also be discriminatory against close family members.
The draft Fatal Accidents Act 1976 (Remedial) Order 2020 aims to correct a gap in the law identified by the Court of Appeal in 2017, Smith v Lancashire Teaching Hospitals [2017] EWCA Civ 1916, where it held the denial of damages to a claimant whose cohabiting partner of 11 years died was a breach of their right to private and family life.
In a situation where a cohabitant and a spouse are eligible, the draft order splits the award equally. The committee was concerned this could lead to unfairness.
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