Cohabitant Denied Fatal Accident Act Claim

The weaker position of cohabitants, compared with surviving spouses and civil partners, in claims brought under the Fatal Accidents Act 1976 (FAA), was highlighted in a recent High Court case.

In July 2008, 28-year-old Alan Winters was killed at work whilst attempting to remove a four-ton crate from a shipping container. His employer, Davey Markham Ltd., was subsequently found by the Health and Safety Executive not to have carried out a proper risk assessment for the task and was fined more than £33,000.

At the time of his fatal accident, Mr Winters was living with his partner, Laurie Swift, and her daughter in a home into which they had recently moved. Ms Swift was expecting the couple’s first child, and their baby son was born six weeks after his father’s death.

Following Mr Winters’ death, a successful claim against Davey Markham Ltd. was brought under the FAA on behalf of the couple’s son. Ms Swift also sought to bring a similar claim, assessed as being worth more than £400,000.

Under the FAA, certain family members of a deceased person have the ability to claim against the person who has caused the death of their relative by ‘wrongful act, neglect or default’. Davey Markham Ltd. had accepted responsibility for Mr Winters’ death. The categories of persons able to claim under the FAA include the survivor of a couple living together as ‘husband and wife’. However, under the FAA provisions, a cohabitant can only bring a claim if the couple have been living together for two years or more prior to the death. Mr Winters and Ms Swift had been living together for just six months at the time of his accident and thus Ms Swift was unable to bring a claim.

Ms Swift challenged the two-year time constraint in the FAA in the High Court, relying on the European Convention on Human Rights. Ms Swift’s lawyers argued that the relevant FAA provisions were contrary to Article 8 of the Convention, which sets out an individual’s right to respect for his or her family and private life, and contrary to Article 14, which provides that an individual’s rights under the Convention shall be secured ‘without discrimination on any ground’.

The judge dismissed Ms Swift’s claim on both grounds, however, commenting that he could see no direct and immediate link between her rights under the FAA and her right to respect for her family and private life under the Convention.

However, in delivering his judgment, the judge expressed sympathy for Ms Swift’s position, saying that her frustration and sense of injustice were understandable, particularly in the light of recent proposed reforms to the FAA which would have allowed her to bring a claim.

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