European Court of Human Rights

29 January 2010

FOURTH SECTION

Application no. 19298/08
by M.E. MACRITCHIE
against the United Kingdom
lodged on 12 February 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Ms M.E. Macritchie, is a British national who was born in London and lives in Gosport.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant’s husband served in the Royal Navy for twenty two years between 1953 and 1976. During this time he was involved in the re-fitting of ships and was exposed to asbestos. He died on 21 September 2006. The cause of death was recorded on his death certificate as follows:

(a) post-operative sepsis and pneumonia

(b) malignant mesothelioma

Verdict: Industrial disease

It appears from the papers submitted to the Court that the applicant was not lawfully married to her late husband at the time of his death. However, she states that she was financially dependent on him and that, although they never re-married, they were together for forty seven years.

The applicant instructed solicitors to bring a claim against the Government in respect of her late husband’s death on the grounds that his death had been caused by exposure to asbestos on board Royal Navy ships. However, she was informed by her solicitors that the Government had immunity in respect of her proposed claim. In a letter dated 12 December 2007, her solicitors stated that “servicemen are unable to claim for asbestos related disease prior to 1987... the law was made for public policy reasons and... there is little you or I can do to change the situation”.

The applicant sought compensation from other sources, including from the Manville Corporation which she says manufactured the asbestos. Under a settlement agreement, dated 23 October 2008, the Manville Personal Injury Settlement Trust agreed to pay the applicant USD 6,309. This did not represent full compensation; the written settlement agreement stated the full liquidated value of the applicant’s claim to be USD 115,500.

The applicant also sought to claim a War Widows pension. However, on 7 February 2008, her claim was rejected on the grounds that she was not legally married to her late husband at the time of his death.

B.  Relevant domestic law

Section 10 of the Crown Proceedings Act 1947 states:

(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if—

(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft, or vehicle for the time being used for the purposes of the armed forces of the Crown; and

(b) the Secretary of State certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:

Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.

(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if—

(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and

(b) the Secretary of State certifies as mentioned in the preceding subsection;

nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.

Section 1 of the Crown Proceedings (Armed Forces) Act 1987 states:

...section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.

The 1987 Act was passed on 15 May 1987.

COMPLAINTS

The applicant complains that her late husband’s death was caused by the acts or omissions of the Government and further complains that she cannot claim compensation in respect of his death. Although she does not identify any specific Convention articles in her application, the essence of her complaint raises issues under Articles 2, 6 and 13 of the Convention.

QUESTION TO THE PARTIES

Do the facts of the case disclose a failure by the authorities to protect the applicant’s right to life, ensured by Article 2 of the Convention?

Did the applicant have an effective remedy in respect of her Article 2 complaint, as required by Article 13 of the Convention?