Damages for death and human rights


1362401166_wreathSwift v. Secretary of State for Justice, Court of Appeal, 18 February 2013 – read judgment – on appeal from Eady J, read judgment and my previous post

Ms Swift lost her live-in partner in an accident at work caused by negligence. She was pregnant with her partner’s child, but had only been living with him for 6 months. Had she been with him for 2 years, she could have claimed damages for his death under section 1(3) of the Fatal Accidents Act – set out at [1] of the CA judgment. She would then have been a “dependant” as defined under the FAA. So she argued that her rights under Articles 8 (family) and 14 (discrimination) of the ECHR were not properly respected by the law governing damages for the death of a relative – there was no justification for this stark cut-off – 1 year 11 months no claim, 2 years a claim. The judge refused to grant a declaration of incompatibility between the ECHR and the Fatal Accidents Act, and the Court of Appeal has just upheld his decision.

A lot of money turned on the point:  Had she qualified as a dependant, she would have had a claim for about £400,000.

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When human rights hit the private law of damages for death

Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment

This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?

Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via  s.3 of the Human Rights Act  (to make the FAA  rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.

So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.

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