Jacqueline Smith (Suing in her own Right and as the Surviving Partner of John Bulloch, Deceased) v Lancashire Teaching Hospitals NHS Foundation Trust and Others
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton Mr,Lord Justice McCombe,Sir Patrick Elias |
| Judgment Date | 28 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1916 |
| Docket Number | Case No: B3/2016/3774 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 2017 |
and
and
[2017] EWCA Civ 1916
THE MASTER OF THE ROLLS
Lord Justice McCombe
and
Sir Patrick Elias
(sitting as a Judge of the CoA Civil Division)
Case No: B3/2016/3774
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Edis
Royal Courts of Justice
Strand, London, WC2A 2LL
Vikram Sachdeva QC, Stephen McNamara and Catherine Dobson (instructed by Slater and Gordon) for the Appellant
David Blundell (instructed by the Government Legal Department) for the Third Respondent
The First and Second Respondents did not appear and were not represented
Hearing date: 7 November 2017
Judgment Approved
The issues on this appeal are whether (1) the provisions concerning the right to bereavement damages under section 1A 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 years before the death as husband or wife or civil partner ("a 2 years + cohabitee") because they would otherwise be incompatible with Article 14 of the European Convention on Human Rights ("the Convention"), taken in conjunction with Article 8 of the Convention; and (2), if they cannot be so interpreted, the court (a) should declare them to be incompatible, and (b) the Secretary of State for Justice should pay damages to the appellant under the Human Rights Act 1998 ("the HRA") equal to what would have been the bereavement award at the date of death.
The appeal is from the order of Edis J entered on 8 September 2016 dismissing the claim of the appellant, Jacqueline Ann Smith ("Ms Smith"), for a declaration that section 1A of the FAA should be so interpreted or for a declaration that it is incompatible with her rights under Article 8 of the Convention or under Article 14 read in conjunction with Article 8.
The legislative context
Section 1 of the FAA requires a tortfeasor who has caused death to pay damages for the benefit of "dependants" of the deceased. As amended, section 1 defines "dependant" to include, in addition to a spouse or former spouse and a civil partner or former civil partner of the deceased, a 2 years + cohabitee. Section 1A of the FAA also requires the tortfeasor to pay bereavement damages to the spouse or civil partner of the deceased and various other persons, but not including a 2 years + cohabitee. The introduction of bereavement damages into the FAA was made by the Administration of Justice Act 1982 ("the 1982 Act"). The 1982 Act also extended the definition of "dependant", for the purposes of dependency damages, to include a 2 years + cohabitee. The resulting distinction between a dependency claim and a claim to bereavement damages in that respect was not discussed in Parliament at all during the passage of what became the 1982 Act. There is no evidential material which explains the reason for the distinction.
The factual background and the proceedings
Ms Smith and Mr John Bulloch lived in the same household as man and wife between March 2000 and the date of Mr Bulloch's death on 12 October 2011. They never married. It is accepted that their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.
Mr Bulloch died as a result of the admitted negligence of the first and second defendants, Lancashire Teaching Hospitals NHS Foundation Trust and Lancashire Care NHS Foundation Trust ("the NHS Trusts").
Ms Smith, as a 2 years + cohabitee, brought proceedings against the NHS Trusts for dependency damages under section 1 of the FAA. That claim was compromised and the NHS Trusts have subsequently played no further part in the proceedings.
Ms Smith did not make a claim against the NHS Trusts for bereavement damages under section 1A of the FAA. The Secretary of State for Justice was joined as the third defendant so that the claim for bereavement damages could be pursued. The amended Particulars of Claim state that no claim for such damages was made against the NHS Trusts because, unlike the provisions for dependency damages under section 1 of the FAA, the express terms of section 1A(2)(a) of the FAA do not extend to 2 years + cohabitees.
The amended Particulars of Claim assert that a literal reading of section 1A(2)(a) of the FAA is incompatible with Article 8 of the Convention, alternatively Article 8 read with Article 14 of the Convention. The Particulars of Claim claim by way of relief: (1) either (a) a Convention-compliant reading of the section permitting claims for bereavement damages for 2 years + cohabitees, or (b) a declaration pursuant to section 4 of the HRA that section 1A(2)(a) of the FAA is incompatible with the Convention, and (2) damages of £11,800 pursuant to section 8 of the HRA, that being the statutory amount of bereavement damages applicable at the date of the deceased's death (when the cause of action accrued).
The legislation
The legislative history of sections 1 and 1A of the FAA is examined in detail in paragraphs [11] to [27] of the Judge's judgment. It is not necessary to set it out again here.
As amended the FAA provides as follows (so far as relevant):
" 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) …
(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).
(5) The Lord Chancellor may by order made by statutory instrument … amend this section by varying the sum for the time being specified in subsection (3) above."
The figure of £12,980 is the current amount of bereavement damages. As I have said earlier, the amount at the time of Mr Bulloch's death was £11,800.
The HRA
The HRA 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
(c) …
4.—Declaration of incompatibility.
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4)...
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