Kotke v Saffarini

For a fatal-accident dependency claim requiring two years of living in the same household as husband or wife, the question is whether the statutory-quality household existed throughout the whole qualifying period. The court must assess the relationship as a whole. Relevant matters include shared domestic life, mutual society, protection and support, public and private acknowledgement, financial arrangements, sexual relationship, children and stability. No single factor is decisive, and keeping a second house is not automatically fatal. But intention, commitment, plans to establish a home and frequent stays do not themselves establish the required household. The claimant must show that the threshold had been crossed by the first day of the two-year period. Appellate interference with such findings is restricted.

The administrators of Trevor Noel Snowdon’s estate brought proceedings after he was killed when the respondent’s car left a bridge. Ms Kotke, who survived the accident, claimed dependency damages under section 1(3)(b) of the Fatal Accidents Act 1976. The respondent disputed her status because she was not his spouse and had not lived with him in the same household as his wife for at least two years before his death.

On a preliminary issue, His Honour Judge Hepple QC held that the statutory condition had not been proved by 5 March 1998. The appeal concerned whether the evidence established that the parties were living as husband and wife in the same household by that date, despite their relationship, frequent stays together and the deceased’s retention of a separate home.

Appeal dismissed. Permission to appeal was granted because the issues merited consideration, but the judge’s conclusion was upheld.

1. Section 1(3)(b) of the Fatal Accidents Act 1976 imposes a compendious requirement. The claimant had to establish that statutory-quality living in the same household as husband and wife existed throughout the whole two-year period immediately before death. The critical question was whether that status had been achieved by 5 March 1998.
2. The court endorsed the fact-sensitive approach drawn from Santos v Santos 1972 Family Reports 247 and Gully v Dix [2004] EWCA Civ 139. Household is not synonymous with house. The court must consider the physical and personal aspects of the relationship, including mutual society, protection and support, public and private acknowledgement, stability, financial support, sexual relationship and children. No single factor is necessarily decisive. The discussion in Muir v Royal Insurance Co (1981) 125 DLR (3d) 172, Crake v Supplementary Benefits Commission [1982] 1 All ER 498 and Kimber v Kimber [2000] 1 FLR 383 assisted that analysis.
3. Retention of a second house or home is not itself a bar. The court must examine how it was maintained and used, and whether those matters showed that the parties had not yet treated the claimant’s home as their mutual home. The issue here was the commencement of statutory cohabitation, unlike Gully v Dix, which concerned whether established cohabitation had continued despite later separation. Pounder v London Underground Ltd [1995] PIQR P217 (QBD) was of no assistance because it concerned brief absences during an already established period.
4. The court upheld the distinction between wanting, intending or planning to live together and actually doing so. The deceased retained his wardrobe, possessions and home in Doncaster, while his presence at the claimant’s Sheffield home remained that of a frequent guest until after the pregnancy. Shared expenses, sexual intimacy and commitment did not, on the totality of the evidence, establish a joint household by the critical date.
5. An appellate court should not disturb a fact-sensitive finding reached after a careful account of the evidence and a correct understanding of the law unless the judge misunderstood material evidence, failed to make a finding on a crucial issue, or reached a conclusion no reasonable tribunal could reach. The judge’s failure to identify a more precise later commencement date was not fatal.

1. Court of Appeal (Civil Division): On 9 March 2005, the court granted permission to appeal but dismissed the appeal. [2005] EWCA Civ 221
2. High Court of Justice, Queen’s Bench Division: His Honour Judge Hepple QC determined a preliminary issue and held that Ms Kotke had not proved that she and the deceased were living in the same household as husband and wife by 5 March 1998.