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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McGibbon v. McAllister [2008] ScotCS CSOH_4 (11 January 2008) URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSOH_4.html Cite as: [2008] ScotCS CSOH_4, [2008] CSOH 4, [2008] ScotCS CSOH_04 |
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OUTER HOUSE, COURT OF SESSION [2008] CSOH |
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PD931/07 |
OPINION OF LORD BRODIE in the cause PAUL McGIBBON Pursuer; against GRAEME McALLISTER Defender: ญญญญญญญญญญญญญญญญญ________________ |
Pursuer:
Milligan; Thorntons
Defender: Watson, Solicitor
Advocate; Simpson & Marwick
11 January 2008
Introduction
The statute and the issue arising from it
"1. In this Act 'relative' in relation to a deceased person includes -
(a) any person who immediately before the deceased's death was the spouse of the deceased;
(aa) any person, not being the spouse of the deceased, who was, immediately before the deceased's death, living with the deceased as husband or wife;
(b) any person who was a parent or child of the deceased;
(c) any person not falling within paragraph (b) above who was accepted by the deceased as a child of his family;
(d) any person who was an ascendant or descendant (other than a parent or child) of the deceased;
(e) any person who was, or was the issue of, a brother, sister, uncle or aunt of the deceased; and
(f) any person who, having been a spouse of the deceased, had ceased to be so by virtue of a divorce;
but does not include any other person.
2. In deducing any relationship for the purposes of the foregoing paragraph -
(a) any relationship by affinity shall be treated as a relationship by consanguinity; any relationship of the half blood shall be treated as a relationship of the whole blood; and the stepchild of any person shall be treated as his child; and
(b) section 1(1) of the Law
Reform (Parent and Child) (
"any person not falling within sub-paragraph (b) above who accepted the deceased as a child of the person's family".
Submissions of parties
Submissions
for the defender: first speech
Submissions for the pursuer: first speech
[12] Mr Milligan accepted that to qualify for a claim for non-patrimonial
damages in terms of section 1(4) of the Damages (Scotland) Act 1976 (as
amended), the pursuer requires to be part of the deceased's "immediate family"
in terms of Schedule 1 of the Act, as that schedule stood as at the date
of the deceased's death. It was,
however, his submission that although the pursuer was not the natural father of
the deceased, he was, nevertheless, a "parent" of the deceased in terms of
paragraph 1(b) of that Schedule. Mr Milligan referred me to one of the
definitions of "parent" which is provided by the Oxford English Dictionary: "A
person who holds the position or exercises the functions of a parent; a
protector, guardian". That was precisely
the position held by the pursuer, who had acted as father to the deceased from
the age of 18 months to his death at 18 years. He had lived with the deceased for most of
the deceased's life. The extent of that
relationship would be a matter for proof before answer. To hold that the pursuer was not a parent of
the deceased would be to discriminate against him on the basis of his marital
status. That would be contrary to the
policy of the 1976 Act as a whole and, moreover, would be a contravention of
Articles 8 and 14 of the European Convention on Human Rights. The statute must be interpreted so as to give
effect to Convention obligations: Human
Rights Act
1998 section 3.
[13] In developing his submission, Mr Milligan reminded me that had
the pursuer been married to the deceased's mother at the time of the accident
then he would have been treated as the deceased's father on the basis of
affinity in terms of paragraph 2(a) of the Schedule. Accordingly the only basis on which his claim
was said to be barred was because of his marital status. Although the 1976 Act originally had only
allowed a right to those who were married, that right had gradually been
extended to cohabiting couples: paragraph
1(aa) of the Schedule which was introduced by the Administration of Justice Act
1982 and paragraph 2(b) which was introduced by the Law Reform (Parent and
Child) (Scotland) Act 1986. The 1982 Act
extended the right of action to persons living with the deceased as man and
wife at the time of the accident. The 1986
Act abolished the significance of a child being born out of wedlock. In the 1986 Act "parent" is there defined
non-exclusively as including natural parents, which implies that there are
other categories. Regard also must be
had to the evolution of social mores;
the concept of a "parent" is now wider than it was in 1976: cf. Telfer
v Kellock 2004 S.L.T. 1290 at 1294B
to F. By the time of the enactment of the
Damages (Human Rights Act
1998. To discriminate against the pursuer on the
basis of his marital status would be contrary to Articles 8 and 14 of the
ECHR, given that if he had been married to his cohabitee, the pursuer would
have had a claim. Discrimination on the
grounds of gender or sexual orientation is not permissible and primary
legislation has to be read accordingly, even if that means ignoring the plain
meaning of the statute: Ghaidan v Ghodin-Mendoza [2004] 2 A.C.557, Telfer v
Kellock supra at 1293C to D, and Scot
Law Com No 187 paragraph 2.61. Equally,
it is not permissible to discriminate on the basis of marital status: Sahin v
Submissions for defender: second speech
[14] In a second speech Mr Watson began by focusing on what he
took to be the policy of the Act. That
policy was to provide an exclusionary list of relatives who, as members of the
immediate family of the deceased, were entitled to claim damages for
non-patrimonial loss in terms of section 1(4): Monteith
v Cape Insulation Ltd 1998 SC. 903 at
908C. Schedule 1 paragraph 2 made
specific provision for step-relationships but, on a proper construction, as at
the relevant date, the Schedule did not confer title to sue on someone in the
position of the pursuer. Turning to the
relevance of the Human Rights Act
1998, Mr Watson submitted that this was
not a situation analogous to that of a same sex couple as in Ghaidan or an unmarried natural father
as in Sahin. He referred to Baker,
Human Rights Act
1998: A Practitioner's Guide at paragraph 6-30
where mention is made of relationships which might fall to be protected by
Article 8. Mr Watson submitted that
in considering the application of section 3 of the 1998 Act, regard should
be had to the facts that Parliament must be taken to have been aware of the
point in issue and to have been aware of the
Human Rights Act
. Nevertheless, when legislating in 2006 it did
not provide for retrospective effect for the amendment to the 1976 Act.
Submissions for pursuer: second speech
Discussion
[16] I am concerned with a question of statutory construction: what is to be taken to be meant by the word "parent" when it is found in sub-paragraph (b) of paragraph 1 of Schedule 1 to the Damages (Scotland) Act 1976, as it had been amended up to 7 July 2004, with a view to determining whether the pursuer was, or might by evidence be shown to be, the "parent" of the deceased.
[17] Section 3(1) of the Human Rights Act
1998 provides: "So far as
it is possible to do so, primary legislation and subordinate legislation must
be read and given effect in a way which is compatible with the Convention
rights." Since the commencement of the
1998 Act there therefore has always been a "human rights dimension" to
statutory construction. That said, it
appears convenient to take the exercise of construction in steps. First, to consider what is the "ordinary
reading" or "conventional interpretation" of the provision in question (cf Ghaidan v Godin-Mendoza [2004] 2AC 557, Lord Nicholls at 565A, Lord Rodger
at 594D). Second, at least if the matter
is put in issue, to consider whether the ordinary reading, if given effect,
would produce a result which would be incompatible with the human rights of
interested parties. Third, in the event
that the ordinary reading would, if given effect, be incompatible with the
Convention, to consider whether it is possible to read the provision in
question in a way which removes any incompatibility. If it is possible to give it such a reading
then that is the "true" meaning of the provision (cf Ghaidan v Godin-Mendoza supra Lord Rodger at 594H) and that is
the meaning which must be given effect. If it is not possible to read the provision in
a way that is Convention compatible then, if the court is one of those
identified in section 4 (5) of the 1998 Act, a declaration of incompatibility
may follow.
[19] If I am correct in discerning what is the ordinary reading of
"parent" where it occurs in paragraph (c) of paragraph 1 of Schedule 1 to the
Act, I come to the second step mentioned above: consideration of the question
as to whether that meaning, if given effect, would have a result that was
incompatible with the pursuer's human rights? I have not found this question entirely
straightforward but I have come to answer it in the affirmative. What is in issue is the effect, in the
circumstances of the case, of the interrelationship between Articles 8 and
14 of the Convention. Article 8
confers on the pursuer a right to respect for his family life. While it can be said that by reason of Article 12
the Convention accords a privileged status to marriage, I would understand it
to be beyond dispute that the expression "family life" can properly be applied
to the relationships that arise as a result of less formal arrangements: Keegan v Ireland (1994) 18 EHRR 342 para 44, Kroon v Netherlands
(1994) 19 EHHR 263 para 30, X, Y and Z v United Kingdom (1997) 24 EHHR 143 para
36, Sahin v Germany supra para 34. On
the pursuer's averments I therefore have no difficulty in regarding the
relationship between him and the deceased as an aspect of the pursuer's family
life as that expression is used in Article 8 of the Convention. To that extent Article 8 is engaged. It
is true that Article 8 does not require that domestic law confer a right
of action for reparation in respect of the death of a family member (however
family membership is determined) or any other person with whom an individual has
resided on a long-term basis and that, accordingly, from the perspective of
Article 8, looked at in isolation, the mere fact that Scots law did not confer
on the pursuer a right of action in respect of the death of the deceased would not mean that his human rights were thereby
infringed. However, Article 8 must
be read together with Article 14. If the state makes legislative provision
which promotes respect for family life, "it must not be discriminatory. The provision must not draw a distinction on
grounds such as sex or sexual orientation without good reason": Ghaidan v Godin-Mendoza supra Lord
Nicholls at 565E. The "such as" ground
founded on here is marital status: the pursuer not having been married to the
deceased's natural mother. At para 17.98
of Clayton and Tomlinson, The Law of
Human Rights the authors list marital status as having been recognised by
the European Court of Human Rights as one of the prohibited grounds of
discrimination. I confess to not finding
that entirely clear from the cases there cited (although, without discussion,
the Court appears to have accepted marital status as a prohibited ground in a
case not cited at this paragraph of Clayton and Tomlinson: McMichael v United Kingdom
(1995) 20 EHHR 205). For marital status
to be a "such as" ground it must be regarded as analogous to the specified
grounds of sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property,
birth or other status. Speaking for
myself, I would have thought that there might be a question as to whether
marital status should fall to be regarded as a "such as" ground. There would seem to be force in the
observation by Baroness Hale that "[the] common thread running through the list
is that these are personal characteristics of the individual which he or she
either can do nothing about - such as race or sex - or should not be expected
to do anything about - such as religion or political opinion": Same Sex Relationships and the House of
Lords: One Step Forward and Two Steps Back?, 2007 Jur Rev 247. Marital status is something that individuals
can do something about. They can choose
to get married with the consequences that flow from that or they can choose not
to get married with the consequences that flow from that. I can see why individuals should not be
compelled to change their religious beliefs or political opinions. It is less clear to me that they should not be
required to get married if they wish to be treated in the way that married
people are treated. However, in Sahin v Germany the Court found a distinction as between the position of a
father of a child born out of wedlock whose relationship with the mother of the
child has broken down and that of a divorced father to be discriminatory and
therefore prohibited by Article 14. That is at least analogous with the
distinction that is said to be discriminatory here (and see also McMichael v
[21] I agree that Ghaidan
and Sahin are distinguishable from
the present case, Ghaidan very
clearly so as it relates specifically to the right of respect for the home
rather than for family life. The nearest
to a case in which title to sue in respect of the death of a family member has
been the subject of consideration as coming within the ambit of the protection afforded
by the Convention to which I was referred, was Telfer v Kellock supra,
where, because the date of death of the deceased preceded the commencement date
of the Human Rights Act, Lady Smith did not require to address the
question. I remain somewhat troubled by
the feature that the pursuer here relies on Article 8 in relation to a
matter that can only arise once any prospect of his enjoying family life with
the deceased is no longer possible because of the deceased's untimely death. This was not, however, a point taken by Mr Watson.
I have come to be persuaded that an
interpretation of paragraph (b) which, if given effect, would have the result
that, while the wrongful death of a stepchild is considered to be an event
which is properly to be compensated, the wrongful death of a "de facto stepchild" is not considered to
merit compensation, is not an outcome which accords the same respect to the
purely de facto family relationship
as to the relationship by affinity. Putting
it this way is to equate "respect" with "recognise as being of significance and
value". The complaint therefore comes to
be that the state has not accorded the same value to the pursuer's, now sadly
terminated, relationship with his partner's son as it would have done had he
and his partner been married. No doubt the state's obligations under Article 8
go well beyond simply recognising family life as something of significance and
value, but I see such recognition as being at least part of what the individual
is guaranteed by virtue of the Article. A
tangible expression of that recognition is to confer title to sue for damages
when a family relationship is wrongfully terminated. Not to confer title to sue on someone in the
position of the pursuer when title to sue is conferred on persons in an
analogous position is therefore to discriminate in a way that contravenes
Article 14.
Decision
[23] I shall accordingly allow proof before answer. I shall reserve all questions of expenses
meantime.