When human rights hit the private law of damages for death
24 July 2012
Swift v. Secretary of State for Justice  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Accidents Act 1976 (for the text see  of the judgment – embarrassingly, the one freely available on the internet is out of date).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.
On one level, she appeared to have a good claim. The FAA had been amended in 1982 to provide for claims brought by unmarried cohabitants. In 1999, the Law Commission recommended a generally worded amendment which would have assisted Ms Swift. A governmental consultation paper of 2007 supported the Law Commission’s position, and in 2009 a draft bill was put before Parliament for pre-legislative scrutiny. Then came another round of cuts, and hence in early 2011 this amendment was ditched because “we need to focus our resources on delivering our key priorities” – a phrase which implies that compensating the bereaved was some incidental luxury.
But the more one looks at the Strasbourg cases, the less clear the answer seems, and indeed the judge was not persuaded. Most people who negligently do something which causes the death of someone else (what we lawyers call “tortfeasors” or wrong-doers) are not working for public authorities. So the judge was right to conclude that this was a “positive obligation” case – is there a positive obligation on the state to extend the category of persons who are entitled to claim damages against tortfeasors. If so, the cases suggest that it is necessary to show a “direct and immediate link” between the challenged law and private/family life. This was not established, for example, in Draon v. France (2006), where there was no breach of Article 8 when French law did not give a child a claim in respect of a disability undetected during pregnancy. The point which the judge expressed tactfully is that the claim was not about the relationship between unmarried partners (in which case it was fair and square an Article 8 case) but about whether, after the death of one, the other had a financial claim against a third party. The claimant’s best case seems to have been Yigit v. Turkey in which a wife failed domestically to get pension benefits after the death of her husband, because her marriage had not been properly registered – Strasbourg held that Article 8 was applicable.
The judge summarised his claim on a freestanding Article 8 claim in 
On the first issue, I can thus state my conclusions as follows:
i) I regard this as a “positive obligation” case, such that the Claimant needs to show a “direct and immediate” link between s.1(3)(b) of the FAA and her family or private life. I cannot see that she has been able to do so.
ii) Unlike the cases to which I have just referred, it is not in my judgment possible to conclude that it was the purpose of s.1(3)(b) to improve, promote or benefit ongoing family or private life; nor am I able to hold that it falls, for some other reason, within the ambit of Article 8. It has always been concerned simply to provide certain categories of persons with a right to claim for losses that can be measured in financial terms.
The judge also rejected the Article 14 claim. Article 14 prohibits discrimination on various grounds (sex, race, religion etc) and on grounds of “other status.” Ms Swift said there was discrimination on the grounds of length of cohabitation. By this argument, virtually everything amounts to status, or, as the judge put it at , relying on earlier case law
“I do not think that a personal characteristic can be defined by the differential treatment of which a person complains.”
“Each of the specific grounds of discrimination listed in article 14 shares one feature in common. That is that they exist independently of the treatment of which complaint is made. In that sense they are personal to the complainant … ”
46. Living with someone for six months, or some other specified period of time, or (say) catching a certain train every morning, may be descriptive of behaviour, but could hardly be recognised as “characteristics”.
Hence, the fact that Ms Swift had lived with Mr Winters for 6 months rather than 2 years did not amount to discrimination on grounds of status within Article 14. In any event, the judge held that any discrimination could be justified. In areas of social and economic policy relating to statuses other than the listed ones, Strasbourg affords a wide margin of discretion. The original legislative reasoning behind the 2 year rule was that it involved a sufficient degree of permanence and dependence to justify the claim for damages. The judge held that this could not be held to be irrational, or manifestly without reasonable foundation – in Strasbourg-speak.
The upshot was that the judge dismissed the claim. He did so in terms which are familiar, yet important given our democratic way of doing things:
 Whether the law should be changed and, if so, when those changes should be enacted, and in what form, are classic questions for the legislature and the executive to resolve. As I noted earlier, the present government decided that the bill was not a priority in the climate in which it took office. It is not for the judiciary to second guess such decisions.
 The only legitimate role for the court is that by which the Claimant seeks in these proceedings to circumvent the government’s decision; that is to say, by taking the relatively unusual step of declaring a long standing statutory framework to be incompatible with the European Convention. For the reasons I have already given, I am unable to do so. That is not a step to be taken simply because there are perceived inadequacies in domestic law, or a need to bring it into line with modern society. The court would need to be satisfied that the United Kingdom is compelled to make the relevant legislative changes in order to comply with its international commitments.
But it is worth remembering the form of the proceedings – a claim for a declaration of incompatibility, which involves a head-on clash between the claim and some existing law. A generally more profitable route can be achieved when the Fatal Accidents Act can be “read down” via s.3 of the HRA. A good early example of this is Cachia v. Faluyi – s.1(3) of the FAA says that “not more than one action may be brought” but in this case solicitors had issued but not served a claim; the Court of Appeal re-interpreted this phrase so as to respect the dependents rights under Article 6(1) to a fair trial
It is certainly possible to interpret the word “action” as meaning “served process” in order to give effect to the Convention rights of these three children. Until the present writ was served in July 1997, no process had been served which asserted a claim to compensation by these children for their mother’s death. Section 2(3) of the Fatal Accidents Act 1976 therefore presents no artificial bar to this claim.
The other instance up for argument in the FAA is the case of a foster child of the deceased who had not been adopted by the date of the death; is such a child “any child or other descendant of the deceased” within s.1(3)?
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