High Court calls for change in bereavement law to benefit cohabitees

21 September 2016 by Rosalind English

Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) – read judgment

Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.

The issues before the Court

The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners.

The claimant sought a declaration that the bereavement damages provisions of the Fatal Accidents Act 1976 s.1A(2)(a) should be read down to allow her compensation; alternatively, she applied for a declaration that that provision was incompatible with the Human Rights Act 1998. She argued, inter alia, that she was entitled to claim bereavement damages under her right to respect for her private and family life under Article 8, and that the failure of the FAA so to provide involved discrimination against her under  Article 14 on the ground of her “other status” as an unmarried cohabitee.

The issues were whether the exclusion of two-year plus cohabitees from bereavement damages directly engaged rights under Article 8 of the Convention;  if not, whether the exclusion was within the ambit of Article 8 so that Article 14 was engaged. If the Convention was engaged, did the measure treat the claimant differently from others who were in an analogous situation; was the different treatment was on the ground of status; was there objective justification for the measure and was it proportionate to the justified aim. If there had been discrimination, what would be the appropriate remedy.

Reasoning behind the Court’s decision

Edis J dismissed the claim for a number of reasons. First, he examined the legislative history of the Fatal Accidents Act and explained that its compensatory reach were only for those who suffered bereavement because of the tortious action of another party.

the FAA is not a general statement of policy which applies to all those who suffer bereavement. It concerns only damages actions where death is caused by an actionable tort, generally negligence or breach of an actionable statutory duty. It is not about what bereaved people generally should receive, but about what tortfeasors should pay to those affected by the tort. Those who die as a result of the fault of another where a civil action is brought for damages under the FAA represent a very small proportion of the population. Almost everyone who suffers bereavement receives no compensation of any kind.

…The policy (behind the FAA) also addresses the impossibility of evaluating the loss of a loved one in money terms. It is not an appropriate judicial exercise to attempt to measure and put a price on the love which two people shared. The corollary of this approach is that the conventional sum is fixed at a modest level. To require tortfeasors to pay very large sums without proof of loss would also be unsatisfactory.

However, there was no justification for a distinction between dependency damages (which are available) and bereavement damages (not available) so far as 2 year + cohabits; this had not been explained in Parliament in 1982, and has never been justified by anyone since. The Secretary of State did not justify it in evidence in the present proceedings.

1. Article 8 not engaged.

Article 8 was not as wide as some would have it. It had been argued in previous cases that, since the concept of respect for private and family life is so wide and multifaceted, courts should be ready to conclude, in considering a complaint under article 14, that any alleged act of discrimination is within the ambit of article 8. But as Lord Walker of Gestingthorpe said in  in M v. SSWP

 if that were right virtually every act of discrimination on grounds of personal status (gender, sexual orientation, race, religion, and so on) would amount to a breach of article 14, since these are all important elements in an individual’s private life.

[this was not the effect of the Strasbourg case law].  The European Court of Human Rights has taken a more nuanced approach, reflecting the unique feature of article 8 to which I have already drawn attention: that it is concerned with the failure to accord respect. To criminalise any manifestation of an individual’s sexual orientation plainly fails to respect his or her private life …[but] Less serious interference would merely not have been a breach of article 8; it would not have fallen within the ambit of the article at all.

[2006] UKHL 11; [2006] 2 AC 91

In order to establish that Article 8 was engaged the claimant had to show a direct and immediate link between the restriction and her private and family life (Swift v Secretary of State for Justice [2012] EWHC 2000 (QB)). The mere fact that the family life to be respected had come to an end did not mean that Article 8 was not engaged. In Pannullo v France [2001] ECHR 741 (2003) 36 EHRR 42 and Ploski v Poland [2002] ECHR 735  attendance at family funerals was part of the family life of those members who wished to attend them. In Znamenskaya v Russia (2007) 44 EHRR 15  the court had erred in not focusing on a mother’s right to have her deceased husband registered as their child’s father; her right to recognition of the family continued after the father’s death. However, it would stretch the basis of those cases to extend them to hold that bereavement damages were paid for a purpose either directly within Article 8 or even within its ambit. The denial of a bereavement damages award did not imply that the grief felt by the claimant was less valued by the state than if she had been married.

If there were a right protected by Article 8 to bereavement damages in the event of a death caused by fault, then the failure to afford such a remedy to the claimant might violate that right. I do not believe that [counsel for the claimant’s] submissions went as far as to suggest that this could be shown. Further, I consider that the level of interference involved in refusing the availability of a relatively modest payment is below the threshold of seriousness where Article 8 could in any event be engaged.

…[since] the bereavement damages regime does not indicate any disapproval by the state of the way that she and the deceased chose to live, the complaint does not achieve the level of serious impact required to put it within the ambit of Article 8. Alternatively, the absence of a right to compensation for her grief from the Trust is only tenuously linked to respect for the family life which she enjoyed with the deceased and not linked at all to her private life.

If a measure did not engage Article 8, it would often fall outside its ambit for the same reasons.  It was necessary to test the link between the claimed Article 8 right and the measure either by reference to the seriousness of the impact of the right, or by whether the link was tenuous, or both; M v Secretary of State for Work and Pensions  [2006] UKHL 11; [2006] 2 AC 91 and R. (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484 considered.  Once it was concluded that the bereavement damages regime did not indicate any disapproval by the state of the way that the claimant and the deceased had chosen to live, the complaint did not achieve the seriousness of impact required to bring it within the ambit of Article 8. The absence of a right to compensation for her grief from the defendants was only tenuously linked to respect for the family life which she enjoyed with the deceased and not linked at all to her private life. That conclusion was in line with the principles set out in M, and with the four-stage test that could be extracted from R. (on the application of Tigere) v Secretary of State for Business, Innovation and Skills  [2015] UKSC 57; [2015] 1 WLR 3820 for justification of discrimination for the purpose of Article 14.

2. If Article 14 had been engaged, the claimant had “other status”

Adopting a condition by choice was behaviour that might become a personal characteristic (M).  The claimant was clearly in an analogous position to the survivor of a civil partnership or marriage. She had “other status” because she was an unmarried person living with a partner in a relationship closely analogous to marriage. The situations were sufficiently similar to require discrimination to be justified if any rights within the ambit of Article 8 were infringed by it. That was not a high threshold of similarity, and some differences were permitted between comparable positions that might remain analogous.

If Articles 8 and 14 had been engaged, the secretary of state had not established that the difference in treatment between the claimant and a widow was justified, applying the four-stage test derived from Tigere. The current law was in need of reform (paras 109, 112).

3. The Act could not be “read down”

If the claim had succeeded, a declaration of incompatibility would have been the right remedy. The court could not read down the terms of s.1A(2)(a) so as to include two-year plus cohabitees; it would not be construing a provision so much as enacting one.