Smith v Lancashire Teaching Hospitals NHS Trust & Anor

A statutory exclusion from bereavement damages does not directly engage Article 8 merely because it affects a bereaved person's relationship or finances. A positive obligation to extend such damages requires a direct and immediate link with private or family life and a special link with the claimant's particular needs.

For Article 14, the measure must have a real, non-tenuous link with Article 8 and the impact must be sufficiently serious. An unmarried person living with a partner in a relationship closely analogous to marriage has “other status” and is in an analogous position to a surviving spouse. However, the claim failed because the exclusion was not within the ambit of Article 8.

The claimant had lived with her partner as man and wife for more than two years. Her partner died as a result of admitted negligence. She could claim dependency damages under section 1 of the Fatal Accidents Act 1976, but section 1A(2)(a) limited bereavement damages to a spouse or civil partner.

She sought a declaration under section 3 of the Human Rights Act 1998 reading section 1A as including qualifying cohabitees, or alternatively a declaration of incompatibility under section 4. The central issues were whether the exclusion engaged Article 8, fell within its ambit for Article 14 purposes, involved discrimination based on status, and was justified.

1. Direct engagement of Article 8. The claim involved a positive obligation to extend a statutory remedy. Such an obligation requires a direct and immediate link between the measure sought and the claimant's private or family life, together with a special link between the complaint and the particular needs of that private or family life. Those links were absent. The legislation was concerned with compensation payable by a tortfeasor for a particular loss, not with continuing family life or state recognition of a relationship.
2. Nature of bereavement damages. The award under section 1A was monetary compensation for grief caused by a tortious death. It was a fixed sum designed to avoid intrusive assessment of the quality of a relationship. It was not a symbolic payment marking society's approval or disapproval of the relationship. The exclusion therefore did not amount to an interference with the claimant's Article 8 rights.
3. Ambit of Article 8. The court adopted the approach in M v Secretary of State for Work and Pensions, as explained in Clift v Secretary of State for the Home Department. A real link, rather than a tenuous one, and a sufficiently serious impact were required. The bereavement damages regime did not satisfy that threshold.
4. Status and analogy. If Article 14 had been engaged, the claimant's position would have been different. Being an unmarried cohabitee in a relationship closely analogous to marriage constituted “other status”, and she was in an analogous position to a surviving spouse. These findings did not alter the outcome because the Article 8 ambit requirement was not met.
5. Justification and remedy. If justification had arisen, the Secretary of State had failed to identify a legitimate aim capable of justifying the exclusion. Nevertheless, the court could not use section 3 to enact a new statutory scheme, including rules for competing claims by spouses, cohabitees and children. A declaration of incompatibility would have been the appropriate remedy had incompatibility been established, but no such declaration could be made.