Smith v Lancashire Teaching Hospital NHS Trust & Secretary of State for Justice – Court of Appeal 28 November 2017
Smith is the latest challenge to what are perceived by some to be arbitrary distinctions between those who may or may not claim under the Fatal Accidents Act 1976 for loss of dependency and/or bereavement damages following an actionable wrongful death. Quite some time ago the Law Commission recommended reforming this area of the law but its proposals were not taken forward.
Smith has found that the exclusion of cohabitants from those eligible to claim statutory bereavement damages under s1A of the Fatal Accidents Act 1976 is incompatible with European Convention rights.
It is nevertheless important to emphasise that, without further formal legislative change in the short to medium term, the Smith case does not and cannot alter the substantive tort law relating to compensation following a fatal accident.
Smith - the facts and the 1976 Act
The claimant’s partner died as a result of the defendant’s negligence. She had cohabited with him for 11 years and thus was entitled to claim for loss of dependency as their relationship exceeded the two year minimum term, in section 1 of the Fatal Accidents Act 1976, which applies to cohabitants for this purpose. The basis of this two year threshold had been unsuccessfully challenged on human rights grounds before the Court of Appeal in Swift v Secretary of State for Justice in 2013. The Swift case involved cohabitation of only six months before the wrongful death.
The claimant in Smith also sought a bereavement award under section 1A of the 1976 Act. The list of those eligible to claim this statutory award is restricted to a spouse or a civil partner (ignoring for the time being claims arising from deaths of minors). Cohabitants, of any duration, are simply ineligible.
Perhaps not surprisingly, therefore the tortious defendant rejected this claim. The claimant then joined the Secretary of State for Justice, arguing that her exclusion from the statutory bereavement award was a breach of her right to family life enshrined in article 8 of the European Convention on Human Rights (ECHR) and/or was unjustified discrimination which infringed article 14 of the Convention.
The decision at first instance
Although the High Court was sympathetic to the claimant, it was unable to find in her favour. The judge held that section 1A was not incompatible with the ECHR. In his view, the bar on a cohabitant recovering under s1A neither infringed Article 8 nor achieved the sufficient level of serious impact required to bring it within the ambit of Article 8.
He therefore refused to make a declaration of incompatibility. He observed that, had he in fact found that the claimant’s Convention rights had been infringed, he would have granted the declaration. He would have done so on the grounds that s1A could not have been “read down” - judicial language meaning re-interpreted in accordance with the ECHR and applied to the facts - in the claimant’s favour: “I could not, I think, read down the FAA on this application so as to cure all the problems with it … I would therefore not only have to read down the terms of s.1A but write some new ones which attempt to solve quite difficult issues of policy which Parliament has not addressed. I would not be construing a provision, so much as enacting one.”
The reversal on appeal (28 November 2017): FAA declared incompatible with ECHR
The Court of Appeal unanimously allowed the appeal and has given a subtle and detailed decision. The claimant had not appealed on the bar against her bereavement claim, infringing the right to family life in Article 8, but on the discrimination aspect in Article 14. Her argument was that the bar on her recovering bereavement damages was unlawful discrimination and it brought her complaint “within the ambit” of Article 8.
Giving judgment in her favour on this point, Etherton MR explained that:
“The claim is capable of falling within Article 14 even though there has been no infringement of Article 8. 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.”
The infringement of Article 14 in this instance was in no way subject to a ‘sufficiently serious’ test in order to bring it “within the ambit” of Article 8 and the judge had been incorrect to find to that effect. Etherton MR said that the relevant measure (s1A) was firmly connected with value protected by Article 8: “It inevitably follows that the scheme for bereavement damages is properly regarded as a positive measure, or modality, by which the State has shown respect for family life, a core value of Article 8.”
He noted that there was nothing in any Parliamentary or Government material to justify the discrimination raised by the claimant: “…it is plainly material that Parliament has treated two years + cohabitees as being in a stable and long term relationship comparable to that of spouses and civil partners for the purposes of dependency damages, and that neither in Parliament nor in any evidence before the court has any member of the Government provided any justification for the different treatment of two years + cohabitees under section 1A. As the Judge said … the Secretary of State's position has a degree of incoherence.”
Furthermore, he added that the increase in cohabitation in the UK (from 9% of families in 1996 to 17% in 2015) indicated, in terms of social acceptance, no material difference between marriage/civil partnership and cohabitation.
Remedies and impact?
These aspects raise complex questions.
In the Smith case itself, the Court of Appeal granted a declaration of the incompatibility of section 1A FAA with ECHR Article 14. It was unable, however, to ‘read down’ – i.e. interpret and apply - the provision as applying to cohabitation; a point on which it expressly agreed with the judge. To do that would be to enter into decisions of policy which were not for the court.
The statutory bereavement award at the time of the incident which gave rise to the claim was £11,800 and this amount had initially been sought by the claimant, arguing that she was barred from recovering this amount in tort because of the incompatibility of s1A with the ECHR. [The current statutory award, which applies to deaths after 1 April 2013, is £12,980.]
She abandoned the damages claim on appeal and accepted the declaration of incompatibility alone. It is noteworthy, however, that she reserved the right to reinstate the damages claim if the matter was pursued before the European Court of Human Rights. All the declaration remedy does is to signify the court’s view to the Government. At that point, the Government is not under any obligation to act to remedy the incompatibility. It would however be under a positive obligation to do so if the claimant were to pursue, and win her argument against the Government before the European Court of Human Rights in Strasbourg.
Beyond the case itself and considering its wider impacts, the following may be among the consequences of the decision.
Section 1A of the FAA 1976 still operates to exclude bereavement claims by a cohabitant despite it having being held to be incompatible with the ECHR.
Nevertheless the Smith case could, unless the Government appeals to the Supreme Court, lead to some reputational pressure on compensators facing a s1A bereavement claim from a cohabitant to address this incompatibility when resolving relevant claims.
The reasoning in Smith might potentially be deployed in a new challenge to the decision in Swift v Secretary of State for Justice. That decision four and a half years ago held that the bar in s1 FAA on cohabitants of less than two years making a dependency claim was not incompatible with Articles 14 & 8 of the ECHR. Furthermore, and unlike Smith, the discrimination in Swift was found to be justified. Dyson MR had found that the two year cohabitation threshold applying to s1 dependency claims was a proportionate way of confining eligibility for loss of dependency to relationships that had some degree of permanence. [A very real practical hurdle is that Swift itself is also a Court of Appeal authority, so any challenge to it might have to be taken to the Supreme Court, perhaps by way of leapfrog appeal].
Government legislation to address the incompatibility of the provision looks to be a fairly remote prospect for the time being. First, as noted above, it is not under a positive duty to do so. Second, previous calls for this sort of reform to the FAA have gone unheeded since the early 2000s. Third, the current administration may well have enough in its plate already. And perhaps it should not be forgotten that taking any legislative action now would be politically very sensitive since doing anything to change the law here could easily be characterised as a concession to Europe, given the ECHR angle (and ignoring, as some commentators surely would, the quite important point that Smith actually turns on Convention rights rather than on EU legislation).