Fatal accident that resulted in loss of dependancy of a cohabitee for less than 2yrs
Swift v Secretary of State for Justice
18 March 2013
Court of Appeal
The Claimant had cohabited with her partner for six months before he died in an accident at work. She was not entitled to compensation under the Fatal Accidents Act 1976 because they had not lived together for a minimum period of two years immediately prior to death as required by s1(3)(b). Quentin Underhill looks at why the Court was unable to assist the Claimant and how any change to the law must come from Parliament.
Fatal Accidents Act 1976
Section 1 of the FAA contains an exhaustive list of persons entitled to make a claim in respect of loss of financial dependency. Under S.1(3)(b) a claim may be brought by a survivor of a couple who had been living as husband and wife but only in those cases where there has been cohabitation for 2 years at least prior to the date of death.
The Claimant Laurie Swift’s partner Alan Winters was killed in an accident at work. His employers admitted liability. At the time when Mr Winters died the Claimant had been living with the Deceased for 6 months and she was pregnant with his son.
The son who was unborn at the date of death was able to bring a claim against the employer as a dependant child. However, the Claimant was unable to bring a claim as she was not married to the Deceased, and had not been living with him for 2 years as at the date of death.
The Claimant sought a declaration against the Secretary of State that Section 1(3)(b) of the FAA was incompatible with her rights under the European Convention on Human Rights and in particular Article 8 and Article 14. Article 8 provides a right to respect for private and family life and Article 14 prohibits discrimination. The Claimant contended when the matter first became before the Court on 18 July 2012 in the High Court that she was being treated less favourably than a person who had co-habited with a Deceased partner for 2 years.
Over the past decade or so there have been proposals to reform the FAA culminating in 2009‟s draft Civil Law Reform Bill, extending the right of action to “any person who was being maintained by the Deceased immediately before death”. However in early 2011 the Government decided not to proceed with the Bill in light of the “present financial situation”.
At first instance in the High Court Eady J dismissed the Claimant’s claim on the basis that:
- This was a “positive obligation” case i.e. the question was whether there was a positive obligation to extend the category of Defendants entitled to a remedy. It was therefore necessary for the Claimant to show that there was a “direct and immediate link” between the measure being challenged that is to say Section 1(3)(b) and private or family life.
- It was difficult to see how the present circumstances could be said to give rise to that “direct and immediate link”. The FAA is concerned with the relationship between a Claimant and a person who has wrongfully caused the death of a family member, as opposed to the relationship between a Claimant and any member of his or her family.
- The Claimant’s broad submission was that the issue of financial dependency was intimately connected with family life, did not suffice to establish her case. The fact that a claim under the FAA might have improved the family’s finances did not of itself bring the case within Article 8.
- It was therefore not possible that the purpose of Section 1(3)(b) was to improve, promote, or benefit ongoing family or private life, nor that it fell for some other reason within the ambit of Article 8. It was always concerned simply to provide certain categories of persons with a right to claim for losses that could be measured in financial terms.
In the Court of Appeal, Lord Dyson MR, agreed with Eady J and dismissed the appeal finding that:
- Section 1(3)(b) was not incompatible with Article 14 in conjunction with Article 8.
- The decision as to which cohabitees should be able to claim damages for loss of dependency raised difficult issues of social and economic policy on which opinions might legitimately differ.
- The treatment of cohabitees on the basis of 2 years‟ cohabitation is justified.
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