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Swift v The Secretary of State for Justice, Court of Appeal, 18 March 2013

6 September 2013
The issues

Dependency claims – Human Rights – Fatal Accidents Act 1976 – cohabitees

The facts

The claimant had been cohabiting with Mr Winters for six months when he was fatally injured in an accident at work. A child of the relationship was born after his death. The child was able to make a claim for loss of dependency under Section 1(3) (e) of the Fatal Accidents Act. However since the claimant and Mr Winters had been living together as husband and wife in the same household for less than two years immediately before his death she was not able to do so (Fatal Accidents Act Section 1(3) (b). The claimant argued that that section was incompatible with her rights under Article 14 (rights and freedoms to be secured without discrimination of any ground) and Article 8 (right to respect for private and family life) of the Human Rights Act 1998.

The decision

Did the Section amount to a legitimate aim? The legitimate aim sought was to confer a right of action on the dependents of primary victims of fatal wrongdoing to recover damages in respect of the loss of dependency, but to confine the right to cover damages to those who had a relationship of some degree of permanence.

Were the means chosen to pursue the aim proportionate?

A wide margin of discretion ought to be accorded to the legislature in this case. The United States Supreme Court had developed a doctrine of “suspect” grounds of discrimination which the court would subject to particularly severe scrutiny. These were those based on personal characteristics including sex, race and sexual orientation which an individual could not change. The same approach had been adopted in the Strasbourg jurisprudence. The difference in treatment based on the duration of cohabitation was not founded on what had been described in the case law as a “suspect” ground of discrimination. In Draon v France, the Grand Chamber had noted that in matters of general policy on which opinions within a democratic society could reasonably differ, the role of the domestic policy maker should be given special weight. Further reasons why Parliament should be given a generous margin of discretion had been collected in the European Court of Human Rights decision in Mosley v United Kingdom those factors were in play in this case. The claim raised issues as to the extent of the positive obligations of the United Kingdom to provide legal remedies between individuals. The Article 8 issues raised did not affect an important or indeed any aspect of the claimant’s personal identity or an intimate aspect of family or private life. The court was dealing with territory far removed from that of the “suspect” discrimination on grounds such as sex and race and the legislature was entitled to a generous margin of discretion. Finally there was no consensus across the member states as to the importance of the right of action with which the court was concerned or as to the nature and duration of the relationship of dependency that it required.

There was no obviously right answer as to how to meet the legitimate aim. Parliament was entitled to decide there had to be some way of proving the necessary degree of permanency and constancy in a relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there could not be a presumption in the case of short term cohabitants unlike that of married couples or parents and their children. It was therefore entitled to decide that it was necessary to have a mechanism for identifying those cases in which a relationship between cohabitants was sufficiently permanent to justify protection under the Fatal Accidents Act.

The two year requirement was not arbitrary and therefore disproportionate on that basis. It was understood that when Parliament choose to draw a line it was inevitable that hard cases would fall on the wrong side of it. That was not a sufficient reason for invalidating it if in the round it were beneficial and produced a workable and reasonable solution.

For these reasons the court was satisfied that Section 1(3)(b) of the Fatal Accidents Act was not incompatible with Article 14 of the convention in conjunction with Article 8. It was a proportionate means of pursuing a legitimate aim.

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