Jacqueline Ann Smith v Lancashire Teaching Hospitals NHS Trust and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Edis |
| Judgment Date | 08 September 2016 |
| Neutral Citation | [2016] EWHC 2208 (QB) |
| Docket Number | Case No: HQ16C01318 |
| Court | Queen's Bench Division |
| Date | 08 September 2016 |
[2016] EWHC 2208 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Edis
Case No: HQ16C01318
Vikram Sachdeva QC, Stephen McNamara, andCatherine Dobson (instructed by Slater & Gordon (UK) LLP) for the Claimant
David Blundell (instructed by The Government Legal Department) for the Third Defendant
Hearing dates: 27 th and 28 th July 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claim
The claimant seeks a declaration in one of two alternative forms:-
i) Pursuant to s.3 of the Human Rights Act 1998 ("the HRA") that s.1A(2)(a) of the Fatal Accidents Act 1976 ("FAA") is to be read as including cohabitees who were living with the deceased in the same household immediately before the date of the death, where they had been living with the deceased in the same household for at least two years before that date, and where they were living during the whole of that period as the husband or wife or civil partner of the deceased; or
ii) Pursuant to s.4 of the HRA that s.1A(2)(a) of the FAA is incompatible with her rights under the European Convention of Human Rights and Fundamental Freedoms either under Article 8 or under Articles 8 and 14 taken together.
The FAA requires a tortfeasor who is liable for causing a death to pay dependency damages under s.1 to a person within certain categories of relationship with the deceased to compensate such a person for the financial losses caused by the death. By s.1A it also requires the tortfeasor to pay bereavement damages to the spouse or civil partner of the deceased or, where the deceased was a child who had not reached the age of 18, to the parents of that child. Dependency damages may be claimed by a person who had lived with the deceased as spouse or civil partner for at least two years at the date of death ("2 year + cohabitee"). The claimant contends in this action that the denial of bereavement damages to her, as a 2 year + cohabitee, after the death of her partner of many years violates her right to respect for her family or private life, or discriminates against her unlawfully on the ground of her status as an unmarried person.
The declarations which the claimant seeks are intended to express the result of "reading down" and "incompatibility" respectively which are the remedies provided by the HRA where a statutory provision is, on its face, incompatible with Convention rights. The HRA requires them to be addressed in the order in which the declarations are expressed. The claimant seeks primarily the reading down declaration set out at [1(i)] above under s.3 of the HRA. This involves taking the 2 year + cohabitee provision (but not any of the other categories which can claim under s.1 but not s.1A) from s.1 and inserting it into s.1A. It is said that this is consistent with the wide ranging power to construe legislation conferred by s.3, which includes a power to read in words which change the meaning of the provision so as to make it ECHR compliant. In this submission she relies on the approach required by Ghaidan v. Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557. In the alternative, the claimant seeks the incompatibility declaration; and in any event she seeks damages under the HRA amounting to £11,800 being the bereavement award as at the date of death.
The issues
After considering the rival submissions and for reasons I will explain, it seems to me that the questions I have to decide are these, and in this order:-
i) Does the exclusion of 2 year + cohabitees from bereavement damages engage Article 8 rights;
ii) If not, is the exclusion within the ambit of Article 8 so that Article 14 is engaged;
iii) If so, does the measure treat the claimant differently from others who are in an analogous situation;
iv) If so, is this different treatment on the ground of status;
v) If the measure interferes with the claimant's Article 8 rights, or discriminates against the claimant on the ground of her status, is there objective justification for it: if so, is the measure proportionate to the justified aim. I have decided that the justification issue in relation to Article 8 and Articles 14 and 8 may be taken together;
vi) If the claimant succeeds on either limb of her claim can s.1A of the FAA be read down so that she can bring her claim for bereavement damages;
vii) If not should a declaration of incompatibility be made.
The legislation
The relevant provisions were introduced into the FAA by the Administration of Justice Act 1982. This Act did two things of relevance. First, it introduced an entirely new type of claim for bereavement damages by s.1A. Secondly, it extended the availability of a claim for dependency under s.1 so that a 2 year + cohabitee could claim dependency damages. Subsequent amendments have extended both types of claim to civil partners. As amended the FAA provides as follows:-
" 1. — Right of action for wrongful act causing death.
(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
(2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person ("the deceased") whose death has been so caused.
(3) In this Act "dependant" means—
(a) the wife or husband or former wife or husband of the deceased;
(aa) the civil partner or former civil partner of the deceased;
(b) any person who—
(i) was living with the deceased in the same household immediately before the date of the death; and
(ii) had been living with the deceased in the same household for at least two years before that date; and
(iii) was living during the whole of that period as the husband or wife or civil partner of the deceased;
(c) any parent or other ascendant of the deceased;
(d) any person who was treated by the deceased as his parent;
(e) any child or other descendant of the deceased;
(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
(fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;
(g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
(4) The reference to the former wife or husband of the deceased in subsection (3)(a) above includes a reference to a person whose marriage to the deceased has been annulled or declared void as well as a person whose marriage to the deceased has been dissolved.
(4A) The reference to the former civil partner of the deceased in subsection (3)(aa) above includes a reference to a person whose civil partnership with the deceased has been annulled as well as a person whose civil partnership with the deceased has been dissolved.
(5) In deducing any relationship for the purposes of subsection (3) above—
(a) any relationship by marriage or civil partnership shall be treated as a relationship by consanguinity, any relationship of the half blood as a relationship of the whole blood, and the stepchild of any person as his child, and
(b) an illegitimate person shall be treated as—
(i) the legitimate child of his mother and reputed father, or
(ii) in the case of a person who has a female parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008, the legitimate child of his mother and that female parent.
(6) Any reference in this Act to injury includes any disease and any impairment of a person's physical or mental condition.
1A. — Bereavement.
(1) An action under this Act may consist of or include a claim for damages for bereavement.
(2) A claim for damages for bereavement shall only be for the benefit—
(a) of the wife or husband or civil partner of the deceased; and
(b) where the deceased was a minor who was never married or a civil partner —
(i) of his parents, if he was legitimate; and
(ii) of his mother, if he was illegitimate.
(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.
(4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant)."
The Convention and the Human Rights Act
The HRA provides
" 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
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
4.—Declaration of incompatibility.
(1) Subsection (2) applies in any...
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