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Fatal accident rules no breach of cohabitant’s rights

Eady J says hard cases do not invalidate requirement that couples must have lived together for two years

23 July 2012

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A woman who lived with her boyfriend for only six months could not claim over £400,000 from his employers under the Fatal Accidents Act 1976, the High Court has ruled.

Laurie Swift successfully claimed on behalf of the baby she had with Alan Winters. His employer, Davey Markham, admitted responsibility for his death at work and settled the baby’s claim at £105,000, the High Court heard.

Delivering judgment in Swift v Secretary of State for Justice [2012] EWHC 2000 (QB), Mr Justice Eady said the Act allowed spouses, civil partners and those living ‘as husband and wife’ to make a claim.

In the case of those living together as ‘husband and wife’, Eady J said that they must have been living together for at least two years prior to the death.

Swift argued that this amounted to discrimination under Article 14 of the ECHR, in that she was treated less favourably than those had lived together for more than two years for no objective justification.

Eady J said her discrimination claim depended on her establishing that she had enjoyed family life with Winters and the facts fell within the scope of Article 8.

He said the justice secretary accepted that Swift was dependant on her partner while they were living together as ‘husband and wife’.

However, Eady J said parliament had made clear that the Act was limited to “such relationships as involved a sufficient degree of permanence or dependence to justify the survivor’s right to claim damages against the tortfeasor”.

He went on: “I do not see that this can be characterised as irrational or, in so far as there is any difference, ‘manifestly without reasonable foundation’. Nor yet can it be said that the two year period is disproportionate to this aim. Indeed, no suggestion has been made to the contrary.

“To draw a line anywhere is in a sense arbitrary, but there is no substitute for the making of a legislative judgment, since it is necessary to take account of the need for the law to be as clear and predictable in its operation as possible.

“An alternative would be to leave it to some representative of the state, judicial or otherwise, to make an individual decision in each case. That would surely be open even more to the objection of arbitrariness.

“This is why, no doubt, it has never been suggested by the Law Commission or by those responsible for the draft bill that the two year requirement should be dispensed with.

“It is obvious, in cases where parliament chooses to draw a line, that hard cases will fall on the wrong side of it, but that will not invalidate the rule if, judged in the round, it is beneficial.”

Eady J said he could “readily understand” the claimant’s frustration and sense of injustice and many would agree with her that the law was currently in an unsatisfactory state which could lead to unfairness.

But whether there should be reform and when it should be enacted were “classic questions for the legislature and executive to resolve”.

He continued: “As I noted earlier, the present government decided that the bill was not a priority in the climate in which it took office. It is not for the judiciary to second guess such decisions.”

Mr Justice Eady said he did not believe that Section 1(3)(b) of the Act was incompatible with the Convention and dismissed the claim.

“I am sorry to disappoint Mrs Swift,” he added. “I have little doubt that the law will at some point be changed so as to help others in a similar plight, but that will depend upon the allocation of legislative time.”

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Health & Safety