Abstract
Human rights
LAURIE SWIFT v SECRETARY OF STATE FOR JUSTICE (2013)
[2013] EWCA CIV 193
CA (Civ Div) (Lord Dyson (MR), Lewison LJ and Treacy LJ) 18/03/2013
S, the applicant, appealed against a decision dismissing her claim under section 1(3) (b) of The Fatal Accidents Act 1976, by stating that it was incompatible with her rights under Article 14 and Article 8 of the European Convention on Human Rights.
By way of background, S was living with her male partner for approximately six months prior to a fatal injury that he suffered at work as a result of a another party’s negligence. S was pregnant at the time of her partner’s death and had a child by him that was born shortly after his death. The child was able to make a claim for loss of dependency under the Fatal Accidents Act 1976 but S was unable to do so as she had been living with him for less then two years prior to his death and therefore did not meet the requirements under section 1 (3) (b) of The Fatal Accidents Act.
S’s case was as follows:
The Fatal Accidents Act 1976 was incompatible with her rights under article 14 of the European Convention on Human Rights, as it discriminated against people who had been living as husband and wife for less then two years by excluding them from the group of family members entitled to a claim for damages for loss of dependency under the Act.
Further, that the Act interfered with her right to respect for family life in conjunction with article 8 of ECHR. This interference was not justified under article 8 (2) and the issue to determine was whether the difference in treatment based on length of cohabitation was objectively justified in the circumstances.
It was held that section 1 (3) (b) of The Fatal Accidents Act 1976 was not incompatible with the ECHR as it was a fair means of achieving the rightful aim of giving a right of action for victims of fatal wrongdoings. It gave that right to individuals in such relationships that had a degree of permanence and dependence.
The court held that there was no formula as to which cohabitees should be able to claim damages for loss of dependency but the choice made by Parliament when finalising the Act was not without a reasonable foundation.
Parliament had to make a choice of defining a requisite degree of permanence and consistency in a relationship which was more than merely living together as husband and wife. Therefore, it was entitled to take the view that short-term cohabitees would not have the requisite degree of permanency and constancy as found in relationships of married couples, parents and their children, and individuals who have cohabited for two years or more. The difference in treatment of those who had cohabited for less than two years was justified and did not interfere with article 8(1).
S’s application was therefore dismissed.
Coroners
DOROTHY CLARA FLORENCE MATTHEWS (WIDOW & EXECUTIVE OF REGINALD ANTHONY MATTHEWS, DECEASED) v HERBERT COLLINS & SONS) & ORS (2013)
[2013] EWCA 2952 (QB)
QBD (Swift J) 04/10/2013
An application was made by the defendant (D) to strike out a statement of case which had been served by the claimant (C) as an abuse of process.
Following the death of her husband (M), C brought a claim against D, who had been M’s employer. It was alleged that during M’s employment he had been exposed to asbestos dust and as a result developed lung cancer and asbestosis. In 2008, M had instructed his solicitor (J) about pursuing a claim for contracting asbestosis. However, the matter was not pursued because he was not suffering any symptoms at the time.
J died in January 2009, and following a post mortem it was confirmed that his death was as a result of pulmonary fibrosis and lung cancer. C then notified J in connection with pursuing a possible claim against D as a consequence of J’s death. At an inquest in July 2009 a verdict of death by industrial disease was recorded.
The coroner’s officer thereafter contacted C in November 2010, and asked her what she wanted to do with the samples of J’s lung tissue that they had on file. C was told by the coroner’s office that such samples are not usually kept so C said that they could be destroyed. J was unaware of this telephone conversation between the coroner’s officer and C. J had not represented C at the inquest and went ahead and issued proceedings on C’s behalf in respect of the Fatal Accidents Act claim in January 2012.
Both liability and causation was denied by D. D requested access to J’s tissue samples. D later found out that they had been destroyed and so made an application to the court stating that “the destruction of the tissue samples was unreasonable, an abuse of process giving rise to a real risk of injustice such that a fair trial was no longer possible”.
The court held that C would have been distressed and confused at the time of making her decision to destroy the tissue samples. She was grieving the loss of her husband and his death had been sudden. Further, she would not have realised the importance of preserving the tissue samples.
In addition, as J had not represented her in the inquest they were not present at the time of her conversation with the coroner’s officer and could not therefore advise her. Further, C was told that it was usual practice by the coroner’s officer and she had no reason to question this.
C could not have connected the preservation of the samples with the potential claim against D. It was held that it was unrealistic to have expected C to consult J about this.
Following the post mortem report and the inquest verdict and the fact that the coroner’s office knew of J’s involvement, it would not be an unreasonable assumption that the coroner’s office would not dispose of the samples without J’s prior consent or for them to request that C obtain this. The case of Weaver (Widow & Personal Representative of Harry L. Weaver, deceased) –v- Contract Services Division Ltd. was referred to. In that case the coroner’s officer had told the claimant that the authority of her solicitor was required before the samples could be destroyed.
It would not be just, proportionate or necessary to deprive C of the opportunity to have her claim heard as the evidence from the tissue samples would have been of restricted value and the remaining evidence would be sufficient for a judge make a decision on causation. It was also held that in cases involving industrial disease, the chief coroner should consider advising coroners that the deceased’s family should be advised that:
“if a claim in respect of the death was pending they should consult their solicitor before authorising the disposal of tissue samples. In such cases it would be good practice for solicitors to advise both their clients and the relevant coroner’s office that histological samples should not be disposed of without confirmation that they were not required for the purposes of a claim.”
D’s application was refused.
Personal injury
HOMES FOR HARINGEY v (1) BARBARA FARI (2) PIPER FARI (2013)
QBD (Spencer J) 08/11/2013
Following a finding that a respondent husband and wife (H and W) were in contempt of court, the court had to determine an appropriate sanction.
H and W were found guilty of serious misconduct after making false claims and lying in respect of W’s personal injury claim following a fall outside her home. It was found that W had purposely overstated her symptoms and that H had colluded in this by signing a witness statement that was false. The applicant local authority therefore brought a committal application.
W had submitted that her children’s rights under article 8 of the European Convention on Human Rights would be infringed if she was sent to prison, as she had two children living at home and two adult children with disabilities.
In relation to W
It was held that as W had contested every allegation against her she was not entitled to credit for a guilty plea. W’s trial had taken 4 days. Although her mitigation had been fully considered it was found that H could look after the family while W was in prison. W’s conduct had been serious. It was reiterated that that those who make false claims were expected to go to prison.
W was sentenced to the minimum sentence of 3 months. The Judge took into account that W was not paid any damages as a consequence of the fraud and also the fact that her case had been well publicised in the media, which was a punishment in itself.
In relation to H
It was held that the part that he had played to assist in W’s fraudulent claim warranted a custodial sentence. H was handed a 2-month sentence suspended for 12 months so that he could look after the family while W was in prison.
Human rights
R (ON THE APPLICATION OF ANTONIOU) v CENTRAL & NORTH WEST LONDON NHS FOUNDATION TRUST (1) SECRETARY OF STATE FOR HEALTH (2) NHS ENGLAND (3) (2013)
[2013] EWHC 3055 (Admin)
DC (Aikens LJ, Mitting J) 10/10/2013
X applied for judicial review of the defendant’s failure to conduct an immediate independent investigation following the death of his wife (J), who was a patient in a psychiatric hospital at the time of her death following her detention under Section 3 of The Mental Health Act 1983.
J had expressed suicidal thoughts on the evening prior to her death. As a result she was put on hourly observations by the hospital. The following morning, staff found J lying on the floor with a ligature around her neck. The hospital staff was unable to resuscitate her. She was found 10 minutes after the scheduled observation check.
The subsequent Serious Untoward Incident Investigation carried out by the hospital concluded that there was no fault on behalf of the hospital. An inquest with a jury was carried out and the coroner’s narrative verdict was that J had not committed suicide but “her death was inadvertent following self-harming by use of a ligature”.
X argued that the investigation was not independent and that there was a procedural obligation on the state to conduct an immediate and independent investigation into J’s death under article 2 of the European Convention on Human Rights.
It was held that article 2 of the ECHR imposed substantive obligations on the state, through laws, procedures, precautions and obligations as well as enforceable means that would protect life to the greatest extent practicably possible. The case of R (on the application of Middleton) –v- HM Coroner for Western Somerset [2004] UKHL10 [2004] 2 AC 182 applied and the court found that there is a “general obligation in relation to detained persons to have proper systems in place to prevent self harm and suicide”. There is also an “ ‘operational’ obligation to take reasonable steps to protect detained persons from any real and immediate risk of self harm or suicide, which the authority was or ought to have been aware of”. Further, in England and Wales an inquest may often discharge the procedural obligation. However, there have been occasions where an independent investigation aside from the inquest is required to fulfil their obligations but these were all occasions where an inquest was either not held or was improper. The state were not required to fulfil article 2 obligations to conduct an independent investigation into the death of a detained person in hospital from the outset as there was no domestic authority making them do so.
Even though there have been cases of immediate and independent investigations where the death of persons in custody or detention was involved, it did not follow as a matter of law that a similar system should be implemented to investigate suicides of detained patients. It was also held that patients detained under the Mental Health Act 1983 were at high risk of suicide and that hospitals were bound by the obligations in article 2 of the ECHR as agents of the state. It was only if the obligations failed that the procedural obligations of article 2 were triggered.
X’s application was refused.