FATAL ACCIDENT BEREAVEMENT DAMAGES DO NOT EXTEND TO COHABITEE: A HIGH COURT DECISION MADE WITH SOME RELUCTANCE

In the judgment today in Smith -v- Lancashire Teaching Hospitals NHS Trust [2016] EWHC 2208 (QB) Mr Justice Edis, reluctantly, held that the Fatal Accidents Act bereavement payment cannot be extended to cover a cohabitee.

“Why, in any event, does it serve any public interest to refuse to require insurers to make payments which, according to the Association of British Insurers response to the 2009 consultation, they are willing to make? If some such public interest can be found, what is the fair balance between it and the (assumed) rights of the 2 year + cohabitees to receive such payments?”

KEY POINTS

  • The court rejected the argument that a cohabitee, who was a dependant under the definition in the Fatal Accidents Act, should also be entitled to receive the statutory bereavement payment.
  • Articles 8 and 14 were not engaged and the court did not make a declaration of incompatibility.
  • However if the court had considered the issue of justification the difference in treatment could not be justified.
  • It was to he hoped that the issue could be addressed in legislation. However the courts could not intervene.

THE CASE

The claimant had been in a relationship, living together in the same household between March 2000 and the date of his death on the 12th October 2011. The defendants admitted that the death was caused by their negligence.

The statutory bereavement payment is paid to the spouse or civil partner of a deceased person. It is not, however, paid to cohabitees, even when they meet the prerequisite of having living with the deceased for more than two years prior to the death.

SECTION 1A OF THE FATAL ACCIDENTS ACT 1976

1A. — Bereavement.
(1) An action under this Act may consist of or include a claim for damages for bereavement.
(2) A claim for damages for bereavement shall only be for the benefit—

(a) of the wife or husband or civil partner of the deceased; and

(b) where the deceased was a minor who was never married or a civil partner —

(i) of his parents, if he was legitimate; and

(ii) of his mother, if he was illegitimate.

(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.
(4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).”

THE CLAIMANT’S ARGUMENT

The claimant brought the Secretary of State of Justice into the action arguing that the exclusion of cohabitees was incompatible with Article 8 and Article 14.

THE LEGISLATIVE HISTORY AND LAW COMMISSION RECOMMENDATION

The judge considered the legislative history in some detail.
    1. The extension of the dependency claim under s.1 to 2 year + cohabitees was achieved by an amendment during the second reading of the Bill. No such amendment was made or proposed to the draft s.1A. The distinction thus created (now said to be discriminatory) was not discussed in Parliament at all. Therefore, for reasons which were not explained, a 2 year + cohabitee was treated equally with a spouse in s.1 but not in s.1A. On ordinary principles of statutory construction the court looks for the intention of Parliament in creating this distinction when construing s.1A. While it may be the historical fact that no-one thought about it, it may equally be the fact that the justification of the different treatment struck the proposers of the Bill as so obvious it did not need explanation. The state of the common law on psychiatric harm to secondary victims may have played a part. I would infer that the reason for the distinction is to be found in the perceived need to confine bereavement damages far more narrowly than dependency damages. This is consistent with the policy to award the bereavement damages on proof of an easily and objectively verifiable status to avoid an intrusive enquiry. The claimant either was or was not married to the deceased at the date of death and either was or was not the parent of a child who died as a minor without marrying (it is not necessary for the purposes of this analysis to consider the consequences of the illegitimacy of a deceased child, but they tend to confirm it). The adoption of a 2 year qualifying period of cohabitation was a somewhat rough and ready attempt to replicate a similarly objective criterion in the case of unmarried couples. This may have been thought acceptable where the claim is for financial loss, but perhaps not in the case of bereavement damages. At all events, it appears to me that it is not open to the court to conclude that Parliament simply made a mistake. Whatever the reason for the distinction, it was deliberately made.
    2. The Law Commission in its Report “Claims for Wrongful Death” (No. 263, 1999) recommended a substantial broadening of the classes of claimant who could recover bereavement damages. This included a recommendation that 2 year + cohabitees should be entitled to an award. The Report acknowledged the need to avoid inquiries into the quality of relationships and expressed the view that a fixed qualifying period of relationship would have this effect. Although s.1A was visited by Parliament by the Civil Partnership Act 2004 to equiparate civil partnerships with marriages, the recommendation in the Report was not adopted at that time. However, in 2007 the Government published a Consultation Paper “The Law of Damages” CP(R) 9/07 which recommended that the extension to include 2 year + cohabitees should be made. After consultation this became policy and a Draft Bill was published called “Civil Law Reform: a Draft Bill” (Cm. 7773, December 2009). The Draft Bill would have added these two classes of persons who could benefit from an award of bereavement damages:
“(aa) …a person who had been living with the deceased as the deceased’s husband or wife or civil partner for a period of at least 2 years ending with the date of the death;
(ab) ….a child of the deceased who was aged under 18 at the date of the death;”
  1. The incoming government in May 2010 decided not to proceed with the Draft Bill. No detailed reason was given.

THE NATURE OF THE BEREAVEMENT AWARD

  1. The bereavement award is a symbolic award to compensate in money terms for the grief caused by death. It does not seek to reflect the emotional loss or the economic loss caused by the death. That is the point of the standardised award which is the solution Parliament adopted to avoid inappropriate litigation about the value or existence of love in individual cases. Both sides rely on this observation as supporting with their respective cases. The claimant responds that it is precisely because it is about the recognition of loss by the state and not about money that the bereavement award engages Article 8.
  2. The family life is ended by the death and the claim cannot therefore be said to attach to the claimant’s current family life at the date of claim.
  3. The fact that a provision may impact on the financial situation of the claimant’s family is not enough to bring the claim with Article 8, see again Lord Bingham in M v. SSWP at [5] cited above at [43].

ARTICLE 8 WAS NOT ENGAGED

The judge held that Article 8 was not engaged in these circumstances. The omission did not engage or fall within the ambit of Article 8.

  1. I do not accept that denial of the award implies that the grief felt by the claimant is less valued by the state than would have been the case had she been married. The whole point of the scheme is to avoid any such judgments being made. If withholding the payment did express disapproval for her choice not to marry then it might have the humiliating effect which might engage the right to respect for private or family life. Since I do not believe that this is the case, I do not think it does. I accept that the claimant genuinely feels this way, but in assessing the applicability of Article 8 and its ambit her subjective assessment is not a reliable guide. I do not believe therefore that the scheme as it is violates the claimant’s right to respect for her family or private life.
  2. It does seem to me that in order to succeed in showing that Article 8 is directly engaged the claimant would have to show that the United Kingdom would be in breach of Article 8 if it had adopted Lord Hailsham’s preferred solution and decided that no bereavement damages would be allowed at all. 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 Mr. Sachdeva’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. For these reasons I reject the claimant’s case on direct violation of a Convention right.

JUSTIFICATION

The judge held that Articles 8 and 14 were not engaged. However he rejected an argument of justification.
  1. Conclusion on justification. If I am wrong about the engagement of Articles 8 and 14, I do not believe that the Secretary of State has established that the difference in treatment between the claimant and a widow in her position is justified applying the four stage test set out in [67] above, derived from Tigere. I have explained her position as I understand it at [30]-[34] above. I described it at [34] as having a “degree of incoherence”. Why should a parent be able to recover for the loss of a child, but not the other way round? Is their love not equal, or anyway of equal value? If 2 years + of cohabitation is a “bright line” rule adequate for s.1, why not for s.1A? If it is important to any degree to ensure that 2 year + cohabitees do not recover bereavement damages from tortfeasors, why does the Secretary of State preside over the 2012 Criminal Injuries Compensation Scheme whereby damages of the same kind are paid out of public funds after a death caused by a crime?
  2. Why, in any event, does it serve any public interest to refuse to require insurers to make payments which, according to the Association of British Insurers response to the 2009 consultation, they are willing to make? If some such public interest can be found, what is the fair balance between it and the (assumed) rights of the 2 year + cohabitees to receive such payments?
  3. I am unable to identify any legitimate aim which would justify the limitation of the availability of bereavement damages if the law required such a justification. It is therefore extremely difficult to apply the last three stages of the test which all assume that the aim of the provision under consideration can be identified. I do not consider that the provision supports the institution of marriage in any material way. The benefit is paid only after the marriage had been ended by death. It surely is fanciful to believe that couples may weigh in the balance when deciding how they wish to live the availability of bereavement damages should one of them die as a result of the actionable fault of someone who is good for the money or insured. In the modern United Kingdom such deaths are rare and not at the top of the list of factors to be considered when deciding whether to marry or not. A life insurance policy against such a risk with a benefit of £11,800 would cost next to nothing and would be the rational response to any worry of this kind, rather than marrying when otherwise that would not be the chosen course. If the support of marriage is the aim of the provision, why is it undermined by s.1 which makes dependency damages, which are much larger, available to those who have not married? It may also be observed that the status quo which the Secretary of State seeks to support appears to undervalue the love which children have for their parents. It means that a child who loses her parents recovers nothing although her bereavement will almost inevitably be very damaging. This was justified by Lord Hailsham when proposing the 1982 Act on the basis that children would always recover under s.1 and the bereavement claim would therefore add nothing of any real value to them. This is a scarcely adequate justification given that experience has shown that many of those who claim bereavement damages also claim dependency damages. No rational policy objective has been established which is served by denying the claim to an orphan.
  4. In short I agree with the Law Commission, and the predecessor of the Secretary of State who sought to introduce the Draft Bill. The current law is in need of reform. This does not mean, however, that I have any power to bring about that reform. My power to grant a remedy is contingent upon a finding that the provision is incompatible with a Convention right and I have not felt able to make such a finding.”

THE NEED FOR REFORM

  1. It is to be hoped that the outcome of this litigation may provoke some further discussion in Parliament for further legislation which might improve the current state of the law. The necessary provision would be short, probably uncontroversial, and would involve very limited additional expenditure.
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