Court of Appeal holds bereavement damages provision incompatible with human rights
By Adam Taylor
In a judgment handed down yesterday, the Court of Appeal granted the appeal of the Claimant dependant in Smith v Secretary of State for Justice  EWCA Civ 1916. The Court, consisting of Etherton MR, McCombe LJ and Elias J, made a declaration that the bereavement damages provision within section 1A of the Fatal Accidents Act 1976 (“the FAA”) was incompatible with the Claimant’s rights under Article 14, read in conjunction with Article 8, of the European Convention on Human Rights. Article 8 concerns the right to respect for private and family life, and Article 14 concerns the prohibition of discrimination.
The case addressed the rights of cohabitees as compared to spouses and civil partners, and the discrepancy between the rights of people cohabiting for over 2 years (“a 2 years + cohabitee”) under section 1 and under section 1A of the FAA. The factual background was that the Claimant had lived in the same household as her partner Mr Bulloch for 11 years, but they did not marry. As the court stated: “It is accepted that their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment”. Mr Bulloch’s death was caused by the negligence of two NHS tortfeasor defendants, and the Claimant joined the Secretary of State as a third defendant so that the challenge to section 1A FAA could be pursued.
Relevant law and first instance decision
Section 1 of the FAA defines a “dependant” of the deceased, for whose benefit an action could be brought against the tortfeasor, and that definition includes a 2 years + cohabitee. However, section 1A, which provides for a bereavement damages award, only extends the award to a wife, husband, civil partner, or the parents of a minor.
At first instance, Edis J held that the claim did not fall within the ambit of Article 8 so as to engage Article 14, and he dismissed the claim. Nevertheless, he gave judgment on the remaining issues, holding that: (a) the Claimant would have been in a position analogous to the survivor of a marriage or civil partnership; (b) the Secretary of State would have failed to establish justification for the infringement; (c) section 1A could not have been read in a Convention-compliant way and a declaration of incompatibility would have been made under section 4 of the Human Rights Act 1998 (“the HRA”).
Decision on appeal
The Court of Appeal overturned the decision of Edis J on the “ambit test”. The correct description of the ambit test was given as follows: “If the State has brought into existence a positive measure which, even though not required by Article 8, is a modality of the exercise of the rights guaranteed by Article 8, the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified.” Under this test, the Court held that section 1A was a positive modality by which the State had shown respect for family life (a core value of Article 8) because section 1A limits damages to reflect “the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners”.
The Court agreed with Edis J that the Claimant was in a position sufficiently analogous to a surviving spouse or civil partner to require discrimination to be justified, to avoid an infringement of Article 14 in conjunction with Article 8. The special legal status and consequences of marriage were not a relevant distinction in this case, but instead the intimacy of a stable and long-term personal relationship whose fracture by the tortfeasor will give rise to equal and analogous grief when compared with married couples and civil partners. The Court also relied on figures provided to Edis J at trial, as to the increasing popularity of cohabiting couples. There are 3.2 million cohabiting couple families, a number which grew by 29.7% between 2005 and 2015. For the Court, the statistics suggested that “for a significant and increasing proportion of the population of the United Kingdom, there is, in terms of social acceptance, no material difference” between cohabiting couples and married couple or civil partners.
The Court agreed with Edis J that there was no justification for the infringement and labelled the Secretary of State’s position as incoherent. In particular: (a) there had been no explanation, either in parliament or provided to the Court, for the discrepancy between the extension of section 1 FAA to cohabiting couples but not section 1A; (b) the 2009 Ministry of Justice Response to Consultation on the Law of Damages recorded the fact that almost all respondents to the consultation, including the Association of British Insurers, supported the extension of bereavement damages under section 1A of the FAA to 2 years + cohabitees; (c) the Law Commission had recommended in its 1999 Report “Claims for Wrongful Death” (No. 263) that 2 years + cohabitees should be entitled to an award of bereavement damages; (d) a predecessor of the Secretary of State had published a draft Civil Law Reform Bill in December 2009 (Cm. 7773) (not subsequently proceeded with by the government) which would have given effect to the Law Commission’s recommendation; (e) the 2012 tariff scheme under the Criminal Injuries and Compensation Scheme includes a bereavement payment for 2 years + cohabitees, but no explanation had been given for the discrepancy between the CICS and section 1A of the FAA.
The Court also agreed with Edis J that section 1A could not be read in a Convention-compatible way under section 3 of the HRA: “The difference between section 1 and section 1A of the FAA as to the treatment of 2 years + cohabitees is clear, express and intentional and is an ingrained feature of the legislation. Furthermore, as the Judge rightly observed, an extension of section 1A to 2 years + cohabitees would give rise to policy decisions which the court cannot make.” A declaration of incompatibility was therefore made.
The final issue for the Court was whether the Claimant could be awarded the bereavement damages under section 8 of the HRA. Counsel for the Claimant did not pursue this, as the right to damages under section 8 requires a public authority to act unlawfully under section 6, and section 6(2) provides that a public authority cannot act unlawfully where it has acted in a way that is incompatible with a Convention right only because it is bound to follow primary legislation, ie. it could not have acted differently.
The case of Smith saw the Court of Appeal grapple with a limiting provision which is inconsistent with other legislation, for which there has been no justification, and which has long been ripe for reform. The Court took a modern and informed approach to its judgment, one that recognised a diversification of the living and legal arrangements of long term relationships. However, Smith appears to represent a beginning rather than an end. Issues for the future include:
- What will be the response of Parliament to the declaration of incompatibility, and how keen will the appetite be for immediate and wide-ranging reform of section 1A, given the political preoccupation with Brexit and its legislative workload?
- Counsel for the Claimant reserved the right to challenge section 6 of the HRA (no damages where the public authority could not have acted differently due to primary legislation) at the European Court of Human Rights, a challenge which, if brought, would strike at the heart of a the remedial structure of a piece of legislation which has always been highly politically sensitive.
- Edis J noticed other seemingly arbitrary limitations to section 1A which were not specifically relevant on the facts in Smith, but may be encouragement to further human rights challenges in due course. Edis J commented: “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?” These are limitations that have seemed arbitrarily unfair to many personal injury practitioners for some time, and it may be that the climate is now ripe for further challenges.
- Will any introduction of cohabitees to section 1A include the qualifying cohabitation period of 2 years, or will Parliament decide upon a different qualifying period? How can a set period of time define the strength of the grief sufficient to justify an award, given the infinite variation in relationships? Would it be better to introduce a general ‘close connection’ test that the courts could adjudicate on using the particular facts of a relationship, or will that encourage unattractive cross-examination of the strength of the relationship?
Until such time as section 1A FAA is changed or section 6 HRA is challenged, it would appear that bereaved cohabitees are currently in no stronger position than they were before Smith, albeit that they now have hope for the future that the law will offer them greater sympathy and clarity.