Damages for death and human rights
18 March 2013
Swift 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  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.
The Court of Appeal summarised the case:
The issues that arise in relation to the claimant’s primary case [breach of Article 14] are (i) whether the facts fall within the ambit of article 8 so as to engage article 14 (“the ambit issue”); (ii) whether as a cohabitant of less than two years, the claimant had “other status” within the meaning of article 14 (“the other status issue”); and (iii) whether, if article 14 is engaged and the claimant had “other status”, the difference in treatment of claimants based on the duration of their cohabitation by the FAA is objectively justified. The issues that arise in relation to the claimant’s alternative case [breach of Article 8] are (i) whether section 1(3)(b) of the FAA amounts to an interference with the claimant’s right to respect for family life at all; and (ii) if it does, whether the interference is objectively justified pursuant to article 8(2).
Margin of discretion
The Court noted that in both primary and alternative claims objective justification arose (so (iii) and (ii) in the above) and in the event decided the case solely on the grounds that the 2 year rule could be so justified by Parliament. For the details of the arguments on the other points, and the judge’s findings adverse to the Claimant, you will need to have a look at the judgment below and my previous post.
The judge and the CA held that in areas of social and economic policy relating to statuses other than the ones listed (sex, race, colour etc), 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. This was not irrational or manifestly without reasonable foundation.
The CA emphasised the difference between suspect grounds for discrimination and those which were not:
The difference in treatment based on the duration of cohabitation is not founded on what has been described in the case law as a “suspect” ground of discrimination. In R (Carson) v Secretary of State for Work and Pensions  UKHL 37,  1 AC 173, Lord Walker explained at paras 55 to 60 that not all possible grounds of discrimination are equally potent. The United States Supreme Court has developed the doctrine of “suspect” grounds of discrimination which the court will subject to particularly severe scrutiny. “Suspect” grounds of discrimination are those based on personal characteristics (including sex, race and sexual orientation) which an individual cannot change. The same approach has been adopted in the Strasbourg jurisprudence. Thus, for example, in Stec v United Kingdom (2006) 43 EHRR 1017 at para 52 the court drew a distinction between (i) discrimination based exclusively on the ground of sex (requiring very weighty reasons in justification) and (ii) general measures of economic or social strategy (where a wide margin is usually allowed) 
The CA was unpersuaded. The Claimant said that the requirement of cohabitation as husband and wife for at least two years could not be justified as a proportionate means of pursuing the legitimate aim of conferring rights of action on those who had relationships of some degree of permanence and dependence. The line drawn does not further the aim at all and is arbitrary. The legitimate aim was sufficiently met by the requirement that the claimant and the deceased lived in the same household as husband and wife immediately before the date of the death. Nothing is gained by adding the 2 year requirement.
The Secretary of State (as guardian of the law) riposted that this approach is one possible view as to the degree of constancy and permanence that is required to justify conferring on a survivor a right of action against a tortfeasor. But there were other approaches to the same issue. The Court agreed. There was no obviously right answer to the question of how to balance things. Hence, bearing in mind the broad margin of discretion and the number of different interests that had to be taken into account, the CA considered that Parliament was entitled to take a different view – there had to be some way of proving the requisite degree of constancy and permanency over and above the mere fact that the individuals were living together as husband and wife. There was nothing arbitrary about choosing 2 years.Choosing a bright line between qualifying and non-qualifying couples had its advantages over the sorts of fact-sensitive and hence potentially intrusive and intimate inquiries which would otherwise be required to prove some objective standard of permanence and constancy.
So once justification was established, the appeal failed – leaving over the interesting and more hard-edged questions about whether Articles 14 and 8 were in play at all in a claim about damages.
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In response to Ben and MA, the child was able to make a claim for loss of dependency (para 3 of the judgment). On Maureen’s point, an agreement in writing would not have affected this case – the law would not recognise such a contractual agreement as independently creating any rights under s.1(3). I agree whole heartedly with your first point though Maureen, it is a very tragic scenario for Ms Swift.
Devastating indeed to lose your partner and to be treated in so arbitrary a manner at such a time. I suppose given the current trend for the swift changing of partners, a line has to be drawn between whether the couple would have continued living together for the mandatory two years?
It may sound calculating, but is perhaps yet another reason for opting for a contractual agreement in writing stipulating exactly what each partner agrees to. A bit like a will that you always intended writing, but never did. Had they been married, her rights, and those of their child, would never have been in doubt. The law is without sentiment, and reality is cold.
Is there no claim for the child as a ‘dependent’?
I wonder if a better argument would have been from the point of view of the unborn child. If the father would either have been a father supporting the family, or if he had left, would have otherwise had to pay child support, then the mother and child are losing out either way.
I think that would have been a great argument, but i think she still would have lost as a unborn child doesn’t really have any rights as it is not considered a person living under the queens peace. Clearly needs a look though as this is rather unfair.
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