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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.

Facts

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”.

Findings

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.

Comment

  • The Claimant argued that the FAA is out-dated and needs to be changed. Both the High Court and the Court of Appeal were correct in law that the FAA is not incompatible with the right to family life under Article 8.
  • Lord Dyson made the point that it was for Parliament not the courts to embrace social and economic change “there is no obviously right answer” he said. “It may be that many would say the law needs changing. But the choice made by Parliament was not manifestly without reasonable foundation and was one which it was entitled to make”.
  • He explained that Parliament is entitled to decide that there had to be some way of proving the requisite degree of permanence and constancy in the relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there cannot be a presumption in the case of short term cohabitants, unlike that of married couples or parents and their children that the relationship is or is likely to be one of permanence and constancy. It was entitled to decide that it was therefore necessary to have a mechanism for identifying those cases in which the relationship between cohabitants is sufficiently permanent to justify protection under the FAA.
  • He went on to say that he accepted that the existing law can lead to some results which many would regard as unjust and referred to the Law Commission and indeed the Government itself recognising this. He explained that many would say that the proposals that were made for reform were fairer but he dismissed the Claimant’s submission that Section 1(3) in its existing form does not further the legitimate aim of the FAA. The requirement of cohabitation for 2 years is a simple way of demonstrating a real relationship of constancy and permanence.
  • The question that Parliament may have to consider is, whether there is any justification for the two year rule. Laurie Swift would argue that the approach is arbitrary and indefensible. The Court of Appeal did not agree. The Claimant is seeking leave to take the case to the Supreme Court.

For further information please contact Quentin Underhill, Director, Insurance on 0161 603 5086 or at quentin.underhill@dwf.co.uk

By Quentin Underhill

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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