Fatal accidents and cohabitees: useful cases and resources

The aim of this blog is to be a “resource”: pointing out and allowing easier access to the major decisions and documents in relation to fatal accidents.

This post deals with the issue of proving entitlement  in “cohabitee” cases.  That is cases where a couple were not married or in a civil partnership. Here  the test is strict and set out in Section 1(3) of the Fatal Accidents Act 1976.  To be a dependent under the Act a claimant must come within the definition. Section 1(3)(b) allows a claim to be brought by:

“(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;”

IMPORTANT CASES

 

Laurie Smith –v- Secretary of State for Justice  [2013] EWCA Civ 193

Confirms that Fatal Accident requirement for two years cohabitation is not incompatible with Article

14 and Article 8 of the European Convention on Human Rights.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/193.html&query=fatal+and+accident+and+dependant&method=boolean

Kotke –v- Safarani  [2005] EWCA Civ 221

Deals with eligibility of a couple who had long standing relationship but whose working practices meant they did not live together.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/221.html&query=pounder+and+underground&method=boolean

IMPORTANT DOCUMENTS

Law Commission Report on Financial Consequences of Relationship Breakdown

This was produced in 2006.  It deals with the problems of cohabitees and outlines the problems and the law.  (Most of the recommendations have not been put in place).

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/other/EWLC/2006/179(9).html&query=pounder+and+underground&method=boolean

Law Commission Report on Claims for Wrongful Death

http://www.bailii.org/ew/other/EWLC/1999/263.html#para6_21

This report was produced in 2009. Again many of the proposals have not been introduced. Note that same sex “cohabitees” can now bring a claim, https://fatalaccidentlaw.wordpress.com/2013/07/24/fatal-accidents-and-the-marriage-same-sex-couples-act-2013/ .   The section on cohabitants is below.

(c) Cohabitants

6.21      In the consultation paper we expressed the view that the exclusion of cohabitants from the list of those able to recover bereavement damages was contrary to the premise that the damages should be available to those closest to the deceased, and most likely to be aggrieved by their death.[527] However, we also acknowledged the possibility that to open up the availability of bereavement damages to cohabitants is to create a greater likelihood of overcompensation.[528] We suggested that the availability of bereavement damages to cohabitants should turn on the presence of objective indicia of a relationship of permanence and commitment.[529]

6.22      Our view was that appropriate indicia would be that the claimant had cohabited with the deceased in a sexual relationship (whether heterosexual or not) for at least two years immediately prior to the accident.[530] We asked for views as to whether these requirements might be waived if other circumstances demonstrated a sufficient degree of permanence and commitment – for example, where the relationship had produced a child.[531]

6.23      Over 80 per cent of consultees who dealt with this matter were in favour of including cohabitants (whether heterosexual or not) in the class of persons entitled to claim bereavement damages. However, there was divergence on the question as to how the general class of “cohabitants” should be defined. Half of those supporting the inclusion of cohabitants were in favour of the two year qualifying period suggested in the consultation paper,[532] whilst only 17 per cent expressly opposed the application of any qualifying period (some of whom proposed that the class of those entitled to claim should be described more generally).[533]The remainder were in favour of a qualifying period either shorter than two years or of an unspecified duration. In accordance with our position in the consultation paper, consultees seemed to take the view that, while the application of a qualifying period would be arbitrary in its effect, it provided a necessary filter.

6.24      We note that a qualifying period of two years would be in accordance with section 1 of the 1976 Act, and with the recommendations made in our report, Liability for Psychiatric Illness.[534] Our recommendation is therefore that a person who had cohabited with the deceased for two years immediately before the date of death should be entitled to bereavement damages.

6.25      Very few respondents expressly commented on the distinction between cohabitants engaged in a same-sex relationship as opposed to a heterosexual relationship, but almost every person who did so was in favour of equal treatment for cohabitants engaged in a same-sex relationship. We remain of that view.

6.26      We dealt with an analogous question in our report, Liability for Psychiatric Illness.[535] To recover for damages for negligently inflicted nervous shock, a secondary victim has to establish a close tie of love and affection with the primary victim of that negligence.[536] To minimise inquiries into the quality of relationships, we proposed that there should be a fixed statutory list of persons presumed to have such a relationship with immediate victims.[537] Under the reform proposed in that report, a cohabitant is presumed to have the requisite tie of love and affection if he or she and the immediate victim, although not married, had been “living together as man and wife” (or if of the same gender, in the equivalent relationship) for a period of at least two years.[538] Our view is now that the same test as was proposed in the Liability for Psychiatric Illness report should be adopted for present purposes.[539]

6.27      Few respondents commented on the possible waiver of the qualifying period. Of those who did so, over three-quarters supported some provision for waiver, and several explicitly mentioned the situation where the couple had a child together. We have therefore given particular attention to the possibility that the court should be able to waive the qualifying period in such a case. However, we do not consider that the birth of a child is necessarily a good indication of a committed relationship between the parents. For example, one or other of the parents may not have wanted the child. Further, if one were to include the birth of a child as the test for whether the cohabiting parents can or cannot recover, one would be distinguishing between parents who have a child and those who lose a child before birth (for example, because the mother miscarries).

6.28      Further, we reject the view of some consultees that the court should waive the qualifying period if the claimant is able to establish by general evidence a relationship of “permanence and commitment”. This would involve judicial assessment of the quality of the relationship, the very process which our proposed retention of the fixed list seeks to avoid. Therefore, to avoid both overcompensation and possible inconsistency in the list of cohabitants entitled to bereavement damages, and to avoid inquiries into the quality of the deceased’s relationships, we do not recommend that there should be any provision for waiver of the qualifying period.

(d) Other relationships

6.29      Few consultees suggested that any other relation should be added to the fixed list. However, of those who did, there was recurrent support for the inclusion of fiancé(e)s. We consider it likely that a person who was engaged to be married to the deceased is likely to suffer grief, sorrow and a loss of care, guidance and society as a result of the death. We consider that it would be inconsistent to entitle cohabitants (albeit of two years standing) to bereavement damages, but not to extend the right to bereavement damages to fiancé(e)s. This is particularly so when people have personal reasons for choosing not to cohabit with their fiancé(e) until they are married, or are unable to do so. We therefore consider that a person who was engaged to be married to the deceased should also be included in the list of persons entitled to bereavement damages.

6.30      We recognise that there may be some difficulty in determining whether a person was actually engaged to the deceased. In presenting our recommendations for reform of section 3(3) of the 1976 Act, we referred to section 44 of the Family Law Act 1996, which sets out evidential requirements for the proof of an agreement to marry.[540] We consider that section 44 of the 1996 Act is also helpful in this context, and recommend that, where a person claims that he or she was engaged to the deceased, and thus claims bereavement damages, it should only be possible to establish the agreement to marry by evidence in writing of the existence of the agreement, the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or a ceremony entered into by the parties in the presence of one or more witnesses.

6.31      We therefore recommend that bereavement damages should be recoverable by the following persons:

(1) a spouse of the deceased;

(2) a parent of the deceased, including adoptive parents;

(3) a child of the deceased, including adoptive children;

(4) a brother or sister of the deceased, including an adoptive brother or sister;

(5) a person who was engaged to be married to the deceased, as established by evidence in writing of the existence of the agreement to marry, by the gift of an engagement ring by one party to the agreement to the other in contemplation of their marriage, or by a ceremony entered into by the parties in the presence of one or more witnesses (in accordance with the Family Law Act 1996);

(6) a person who, although not married to the deceased, had lived with the deceased as man and wife (or if of the same gender, in the equivalent relationship) for not less than two years immediately prior to the accident. (Draft Bill, clause 2)

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