December 2017 articles archive:

Court of Appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

In M/s J Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others (2017) an appeal which came before the Court of Appeal earlier this month, the Court of Appeal has taken the opportunity to demonstrate its willingness to allow an appeal as it was found to be incompatible with Article 14 (Prohibiting discrimination) of the European Convention on Human Rights (the Convention) when read in conjunction with Article 8 of the Convention. Sir Terence Etherton MR gave the judgment of the court which was unanimous. The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.


The Fatal Accidents Act 1976 (FAA) as amended by the Administration of Justice Act 1982 (AJA), and the Civil Partnership Act 2004 provided for a right of action for a wrongful act causing death in favour of a dependant (dependency damages) which included any person living with the deceased as husband or wife for at least two years before the date of death.


Section 1A of the FAA as amended (by the AJA) further provided for the payment of bereavement damages (currently £12980) but excludes persons living together or cohabitees.


The appellant claimed that her rights under the European Convention for Human Rights were being infringed and appealed against the original trial judge's decision to refuse the claim.


The Court of Appeal, if it found that there was incompatibility, is entitled to make a declaration accordingly under the Human Rights Act 1998 (HRA), which contains the following relevant provisions:

    "3.— Interpretation of legislation.

    (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
    (2) This section—
    (a) applies to primary legislation and subordinate legislation whenever enacted;
    (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and ….”

If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility under Section 4.


Article 8 and Article 14 are as follows:

    "Article 8 Right to respect for private and family life
    1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
    "Article 14 Prohibition of discrimination
    The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Convention was entered into by the UK in 1950 after the second world war and became effective in 1953. It was made part of UK law as part of the HRA 1998.


The Court of Appeal allowed the appeal and in so doing made a declaration of incompatibility with Article 14 in conjunction with Article 8 in respect of section 1A of the FAA in that it excludes persons living with the deceased in the same household for at least two years as husband and wife. The Master of the Rolls was not convinced that the exclusion in the case of bereavement payments was justified whereas cohabitees of 2 or more years were included for the purposes of the dependency payments. In addition, there was found to be a sufficient link between the scheme for bereavement damages under section 1A of the FAA and Article 8 and such link was not too tenuous for that scheme to be within the ambit of Article 8 for the purposes of Article 14.


The Master of the Rolls considered the nature and quality of the relationship of cohabitees and was able to distinguish the present case from that of Burden v UK (2008) when he said:

I agree with the (trial) Judge that, in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of Article 14 in conjunction with Article 8.

In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships: cf, for example, Burden, in which the ECrtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would violate their rights under Article 14 read with A1P1. Rather, it is the intimacy of a stable and long term personal relationship, whose fracture due to death caused by another's tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees.”

 The case of Smith is a further example of what may happen in the event of incompatibility with our HRA. It is also yet another example of the work of the Law commission is not always acted upon by the Government. The Law Commission has previously recommended that cohabitees should be included in the context of bereavement damages and although the government did introduce a draft Bill in 2009 it was not pursued and did not become law.



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