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

WTLR Issue: Winter 2018 #170

JACQUELINE SMITH (suing in her own right and as the surviving partner of JOHN BULLOCH, deceased)

V

(1) LANCASHIRE TEACHING HOSPITALS NHS FOUNDATION TRUST

(2) LANCASHIRE CARE NHS FOUNDATION TRUST (2)

(3) THE SECRETARY OF STATE FOR JUSTICE

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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Counsel Details

Vikram Sachdeva QC and Catherine Dobson (81 Chancery Lane, London WC2A 1DD, e-mail clerks@39essex.com, tel 0207 832 1111), and Stephen McNamara (36 Young Street, Manchester M3 3FT, e-mail clerks@kingschambers.com, tel 0161 832 9082) instructed by Slater and Gordon (50-52 Chancery Ln, London WC2A 1HL,tel 020 7657 1555) for the appellant.

David Blundell (180 Fleet Street, London EC4A 2HG, e-mail clerks@landmarkchambers.co.uk, tel 020 7421 6060) instructed by the Government Legal Department (1 Kemble St, London WC2B 4TS, tel 020 7210 3000) for the third respondent.
The first and second respondents did not appear and were not represented.

Cases Referenced

  • AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42
  • Aldeguer Tomas v Spain [2017] 65 EHRR 224
  • Burden v United Kingdom [2008] WTLR 1129
  • Ghaidan v Godin-Mendoza [2004] 2 AC 557
  • JM v United Kingdom [2010] ECHR 1361
  • Lindsay v United Kingdom [1987] 9 EHRR 203
  • M v Secretary of State for Work and Pensions [2006] 2 AC 91
  • Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47
  • Pannullo and Forte v France [2001] ECHR 741
  • Petrovic v Austria [2001] 33 EHRR 14
  • Ploski v Poland [2002] ECHR 735
  • PM v United Kingdom [2006] 42 EHRR 45
  • R (A) v Secretary of State for Health [2015] EWCA Civ 771
  • R (Clift) v Secretary of State for Work and Pensions [2007] 1 AC 484
  • R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311
  • R (Steinfeld and Keidan) v Secretary of State for Education [2016] EWHC 128 (Admin)
  • R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57
  • Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39
  • Re Brewster [2017] UKSC
  • Re G [2009] 1 AC 173
  • Re McLaughlin’s Application for Judicial Review [2016] NIQB 11; [2016] NICA 53
  • Sahin v Germany [2003] 36 EHRR 765
  • Shackell v United Kingdom (appn no. 45851/99, unreported, decision of 27 April 2000)
  • Swift v Secretary of State for Justice [2012] EWHC 2000 (QB); [2013] EWCA Civ 193
  • V v Associated Newspapers and others [2016] EWCOP 21
  • Van der Heijden v The Netherlands [2013] 57 EHRR 13
  • Yigit v Turkey [2011] 53 EHRR 25
  • Zarb Adami v Malta [2007] 44 EHRR 3
  • Znamenskaya v Russia [2007] 44 EHRR 15


Legislation Referenced

  • Administration of Justice Act 1982
  • Civil Partnerships Act 2004, s3
  • Fatal Accidents Act 1976, ss1, 1A
  • Human Rights Act 1998, ss3, 4, 6
  • Marriage (Same Sex Couples) Act 2013