Bereavement and Mesothelioma Compensation Payments
By Warren Miller. 10th January 2018
In the recent case of Smith v Lancashire Teaching Hospitals NHS Trust, the Court of Appeal found the bereavement damages regime in England and Wales to be incompatible with the European Convention on Human Rights (ECHR).
The ruling stated:
“ The intimacy of a stable and long term personal relationship, whose fracture due to death caused by another's tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpatented cohabiters ”
This is something that Jakki Smith discovered, when her long term partner died from an infection his consultants and
doctors did not spot. Ms Smith commented:
“ Until John died I hadn’t realised that our relationship would be treated any differently ”
As a result she had been unable to recover the bereavement damages that she would have been entitled to if they had been married, which currently stands at £12,980. She considered this to be unfair and decided to appeal against the decision of the High Court. She took the case to The Court of Appeal where she argued that the refusal to pay her bereavement damages was incompatible with the European Convention on Human Rights. The court of appeal agreed, and made a “Declaration of Incompatibility” - which the UK government should resolve by amending the existing legislation.
She did not gain financially from pursuing the question of her entitlement to bereavement damages as the change in the
law will not be retrospective, but she stated that:
“ There’s no longer a taboo around being unmarried. Attitudes have changed, society has moved on and the law needs to be changed to reflect that. Nothing will bring John back, but he was a firm believer in everyone being treated equally
and I think he would have agreed with me that this is worth fighting for. My fight has never been for the money, it’s about
having meaningful relationships recognised. ”
Bereavement Damages for Mesothelioma Claimants
It is common for a cohabiting couple in the UK to marry in the last few months before an asbestos claimant dies and the
trend is that cohabitating will most likely increase in the future. Most couples who divorce are aged 45 and over, with the largest percentages at ages 50 to 64.
Government statistics show that cohabitation is on the increase, however, within the age groups for typical mesothelioma claimants this proportion is small and is likely to continue that way:
- 60 - 64 years: 5.9%
- 65 - 69 years: 4.19%
- 70+ years: 2.2%
Given that there are approximately 2,600 cases of mesothelioma per year, this equates to approximately 100 cases that are
likely to be affected.
Recent mesothelioma cases that this ruling would have applied to:
Mr A was employed by a building company - Sindalls Construction - to build hospitals in the 1960s and 70s. He was diagnosed with Mesothelioma as a result of asbestos exposure during this period. Our mesothelioma solicitors persuaded the insurers of Sindalls to pay mesothelioma compensation to his partner of 30 years, this made provision for her bereavement as well as her dependency.
We had another recent case that demonstrates the injustice:
Mr B developed mesothelioma in 2014. He had worked for many years for the Co-op refurbishing shops and believed that he was also exposed to asbestos when doing such work. His partner for more than 25 years did not receive any compensation payments for her bereavement and felt that the law was treating her life long relationship with her partner as somehow second best.
Our asbestos solicitors feel welcome the ruling, but feel it should incorporate the recommendations of the MOJ in to widen the class of beneficiaries to include parents who lose children aged over 18, also children who lose parents and also other family members like siblings.
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