Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors [2018] WTLR 1469

Analysis

The claimant had cohabited with her partner for 11 years until his untimely death, which was caused by the admitted negligence of the first and second defendants.

Under s1 of the Fatal Accidents Act 1976 (FAA), the claimant, as a cohabiting partner for more than two years, was entitled to bring a claim for damages as a dependant of the deceased. This claim was settled by the first and second defendants, who then took no active role in these proceedings. However, the claimant was not able to bring a claim for bereavement damages under s1A FAA, as a cohabiting (but unmarried) partner was not part of the class of possible claimants under that section.

The claimant asserted that excluding cohabiting partners under s1A FAA was incompatible with her Article 14 rights, taken in conjunction with her Article 8 rights. As a result, the court should either interpret s1A FAA as including cohabitees of two or more years (under s3 Human Rights Act 1998), or should issue a declaration of incompatibility under s4 HRA 1998.

The main basis of the appeal was whether it could be said that s1A FAA could be said to fall within the ‘ambit’ of Article 8 for the purposes of Article 14. If the legislation had brought into existence a positive measure which is a modality of the exercise of the rights guaranteed by Article 8, then the state would be in breach of Article 14 if the impugned measure had: ‘more than a tenuous connection’ with the core values of Article 8, was discriminatory, and could not be justified.

The Secretary of State argued that the connection was too tenuous to fall within the ambit of Article 8 – the provisions of s1A were not intended to give effect to Article 8, nor were they intended to promote family life.

Held:

1. 1) The claimant’s appeal was upheld, and the respondent’s notice dismissed.
2. 2) The state had, by legislation, enacted a positive provision which was a modality of the exercise of the rights governed by Article 8. The scheme for bereavement damages under s1A FAA fell within the ambit of Article 8, on the basis that it reflected the core value of respect for family life.
3. 3) The situation of cohabiting partners such as the claimant and the deceased is sufficiently analogous to those of spouses to require any discrimination to be justified in order to infringe Article 14 (in conjunction with Article 8). Such discrimination could not be justified in this case.
4. 4) Interpreting s1A FAA so that it extends to cohabitees of two or more years would not be appropriate, as it ran counter to the intentional and ingrained scheme of the legislation.
5. 5) The appropriate relief would be to issue a declaration of incompatibility under s4 HRA 1998, on the basis that s1 FAA was incompatible with Article 14 in conjunction with Article 8.

JUDGMENT SIR TERENCE ETHERTON MR: [1] The issues on this appeal are whether (1) the provisions concerning the right to bereavement damages under s1A of the Fatal Accidents Act 1976 (the FAA) are to be interpreted as extending to a person who was living with the deceased in the same household for at least two …

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