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Telfer & Ors v. Kellock [2004] ScotCS 245 (10 November 2004)

OUTER HOUSE, COURT OF SESSION

A1156/02

OPINION OF LADY SMITH

in the cause

JACK TELFER AND OTHERS

Pursuers;

against

ALAN SHIELDS KELLOCK

Defender:

________________

Pursuers: Hajducki, Q.C., Stirling; Drummond Miller, W.S.

Defender: Hanretty, Q.C.; HBM Sayers

10 November 2004

Introduction
[1] On 26 May 1999, Jill Telfer ("the deceased") was killed in a road traffic accident which was caused through the fault of the defender. The deceased was aged 27 years at the time of her death and was the mother of a two year old daughter. She had, immediately prior to her death, been cohabiting with the third pursuer in a same sex relationship. The third pursuer had a son by a previous relationship, the fourth pursuer, who had lived in the same household.

[2] The impression created by the averments in the pleadings is one of the third pursuer and the deceased having lived together as a couple with both acting as parents to the two children of the household. Reference is made to the two adults having, in 1994, gone through a ceremony presided over by a member of the Humanist Society to celebrate their relationship, to rings and vows having been exchanged by them at that ceremony, to their having had a joint tenancy and joint bank account in circumstances where the deceased was earning more than the third pursuer, to their having nominated each other as next of kin, to the conception of the deceased's child having followed on a joint decision by them and to the third pursuer having been present at her birth, to their sharing childcare responsibilities in respect of both the children and to their both contributing financially to the upkeep of the household. It is also said that the fourth pursuer regarded the deceased's daughter as his sister. A clear picture of a loving, caring household of two adults and two children emerges from these averments.

[3] Against the foregoing background, the third and fourth pursuers advance claims under the Damages (Scotland) Act 1976 for damages in respect of loss of support and the non- patrimonial losses specified in s.1(4) of the 1976 Act. To qualify, their relationship with the deceased requires to fall within the definition of "relative" that is contained in Schedule 1 to the 1976 Act. The relevant parts of that Schedule are:

"1. In this Act 'relative' in relation to a deceased person includes -

....

(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;

....

[4] Accordingly, the issues that arise are:

whether, as at 26 May 1999, the third pursuer was, in relation to the deceased, living with her as husband or wife; and
whether, as at 26 May 1999, the fourth pursuer had been accepted by the deceased as a child of her family.

[5] Parties were agreed that s.3 of the Human Rights Act 1998 did not apply to the task of interpretation that required to be carried out since the relevant event, the accident, occurred prior to its coming into force and it did not have retrospective effect (R v Lambert [2002] AC 545; R v Kansal [2002] 2AC 69; Wilson v First County Trust Ltd (no 2) [2004] 1 AC 816).

Submissions for the defender:
[6] Senior counsel for the defender submitted that the definition of "relative" contained in the 1976 Act showed that Parliament had deliberately intended to restrict the class of individuals to whom the statutory claims were competent. It was clear that the third pursuer was not the deceased's spouse. The words used in Schedule 1 should not be read as equiparating to a same sex relationship. Parliament had not used the word "partner". The third pursuer could not bring herself within the definition. Reference was made to the Report of the Scottish Law Commission no.187 on Title to Sue for Non- Patrimonial Loss, which had been laid before the Scottish Parliament in August 2002. Paragraph 2.57 of the report states:

"Same-sex cohabitants. At present the list of the deceased's immediate family does not include the deceased's same-sex cohitabant, who is therefore not entitled to sue for non- patrimonial loss."

The footnote to the paragraph adds:

"At present, same-sex cohabitants are also not entitled to sue for patrimonial loss."

No authority is cited in support of these statements and senior counsel for the defenders indicated that there is no existing Scottish authority in point. He sought, however, to derive support from the reasoning of the majority in the Court of Appeal and of the House of Lords in the case of Fitzpatrick v Sterling Housing Association Ltd [1998] Ch. 304; [ 2001] 1 AC 27, the decisions in which included determinations of the interpretation of provisions in the Rent Act 1977 which extend security of tenure to a person who was "living with the original tenant as his or her wife or husband". He relied on the fact that those determinations were to the effect that that wording did not fall to be interpreted as including a same-sex relationship. Reference was also made to Ghaidan v Godin - Mendoza [2004] 3 WLR 113, senior counsel pointing out that the interpretation adopted by the House of Lords, which was to the effect that that wording did fall to be interpreted so as to include a same-sex relationship resulted from their Lordships applying s.3 of the Human Rights Act.

[7] Regarding the fourth pursuer's claim, senior counsel submitted that the word "family" in paragraph 1(c) of Schedule 1 meant a family which had a heterosexual couple at its apex. The context of the Schedule was such as to indicate that a conventional family was envisaged by Parliament. He also sought to draw support for his argument from the fact that paragraph 2 provides for extension of the relationships covered but only to the extent that they are blood relationships or relationships that are relationships by affinity and, as such, relationships that are the result of marriage. The fourth pursuer was not a child in a conventional family and his relationship with the deceased was not the result of a marriage. He did not, accordingly, it was submitted, have a claim.

Submissions for the third and fourth pursuers:
[8] Senior counsel for the third and fourth pursuers submitted that both pursuers were entitled, in terms of the 1976 Act, to advance claims set out on in the pleadings. Even if the third pursuer was not so entitled, the fourth pursuer was. As regards the third pursuer, the important words were, he submitted: "living with the deceased as husband or wife" and in circumstances where the relationship of the deceased and the third pursuer bore all the hallmarks of a marriage, it was irrelevant that they were not of different gender. In some jurisdictions, such as Belgium and Ontario, same-sex marriage was recognised. It was not, however, necessary to go that far in this case because all that was being sought was for a quasi-marriage to be recognised. The deceased and third pursuer were living in a family unit. If there was a family unit involving them, it was necessary to ask what was the relationship of these two adults to each other and the answer then had to be that they were living as spouses, as man and wife. Reference was made to Goodwin v UK 2002 35 EHRR 18, a case concerning the status of trans-sexuals. The 1976 Act required, it was submitted, to be looked at in a more fluid way, as a living instrument so as to result in the terms "husband" and "wife" not being seen as gender specific. Ultimately, his primary submission was that the list in Schedule 1 of the 1976 Act impliedly included same-sex partners. Failing that, the provisions of paragraph 1(aa) were ambiguous and so should be interpreted in the manner most favourable to the application of the European Convention on Human Rights, which would be to avoid discrimination between unmarried heterosexual and same-sex couples. In support of the latter submission he referred to T, Petitioner 1997 SLT 724.
[9] Regarding the claim of the fourth pursuer, senior counsel submitted that it was clear that a relevant case was pled to the effect that the deceased had accepted him into family. For the purposes of paragraph 1(c) of Schedule 1, a "family" did not require to have two parents nor two heterosexual parents.

The Third Pursuer's claim:
[10] The task that I have to perform is that of statutory interpretation and I require to do so without having regard to the provisions of s.3 of the Human Rights Act 1998 which would otherwise direct me to, so far as possible, read the provisions of the Damages (Scotland) Act 1976 in a way which is compatible with Convention rights. I readily acknowledge that a different result might be produced if that were to be done in this case and that had the death of the deceased occurred on 3 October 2000 or thereafter, the result for the third pursuer might well have been different from the view that I have reached. That view is that the third pursuer's claim is irrelevant because she does not qualify as a "relative" within the meaning of Schedule 1 to the 1976 Act. To do so, she would have to be able to demonstrate that she, the deceased being of female gender, was, in relation to the deceased, living with her before the accident as though she was her husband. That she cannot do because she is herself of the female gender. Had the third pursuer been of the male gender, it appears that it would not have been at all difficult to establish the requisite relationship, given the tenor of the averments. The problem for the third pursuer is, however, that she is not of the male gender. The language plainly denotes a biological distinction between the deceased and cohabitee. Further, it was a provision that was added by way of amendment in 1982 (Administration of Justice Act 1982, s.14(4)), against a background of social recognition of the fact that a significant number of heterosexual couples were choosing to cohabit without being married. If Parliament had, at that time, meant to extend claims to a person who had been in a same-sex relationship with the deceased, it seems unthinkable that the language used would have been chosen. It would have been a simple matter to use the expression "partner" instead.

[11] I find support for the above approach in what was said by Lord Flynn in Fitzpatrick v Sterling Housing Association [2001] 1 AC @ p.34, where he was considering the question of interpreting the expression "as his or her wife or husband" in the context of the Rent Act 1977:

"The first question then is whether the plaintiff was the 'spouse' of Mr Thompson within the meaning of paragraph 2 of Schedule 1 to the 1977 Act, as amended. I recognise that if the non-gender specific noun 'spouse' stood alone the matter might be more debatable as Mr Blake contends, though the ordinary meaning is plainly 'husband' or 'wife'. In the context of this Act, however, 'spouse' means in my view legally a husband or wife. The 1988 amendment extended the meaning to include as a 'spouse' a person living with the original tenant 'as his or her wife or husband'. This was obviously intended to include persons not legally husband and wife who lived as such without being married. That prima facie means a man and a woman and the man must show that the woman was living with him as 'his' wife; the woman that he was living with her as 'her' husband. I do not think that Parliament as recently as 1988 intended that these words should be read as meaning 'my same sex partner' rather than specifically 'my husband' or 'my wife'. If that had been the intention it would have been spelled out. The words cannot in my view be read as the plaintiff contends. I thus agree as to the result with the decision in Harrogate Borough Council v Simpson (1984) HLR 205. The plaintiff accordingly fails in the first way he puts his appeal."

[12] Such an approach had also been adopted by the majority in the Court of Appeal. The decision in Ghaidan v Godin-Mendoza was to contrary effect but that was because it was the result of applying of s.3 of Human Rights Act 1998, as their Lordships were bound to do. I was not persuaded, as senior counsel for the third pursuer suggested, that I could, in a case where s.3 did not apply, find assistance from the approach in that case, or indeed, as he also suggested, from the approach of Ward LJ, in his dissenting opinion in Fitzpatrick. Nor did I find any assistance from considering questions as to the status of trans-sexuals.

[13] I also find support for the approach that I have adopted, from the statement contained in the Scottish Law Commission's Report no. 187, at paragraph 2.57 to which I have already referred. I recognise that it is a statement that is unsupported by any authoritative reference but it is nonetheless, the result of evidently careful research on the part of the Commissioners on a subject that is directly in point and is, accordingly, persuasive in the context of the present case.

[14] I can deal shortly with the submission that, on account of ambiguity, I required to interpret the Schedule in a manner that was Convention compliant. Even if it is correct to suggest, now that it has been determined that the provisions of the Human Rights Act 1998 are not retrospective, to which I have already referred, that the court would be bound to apply a Convention compliant interpretation to an ambiguous legislative provision in respect of a pre 2 October 2000 event, I cannot see that the provisions under consideration in the present case are in any way ambiguous. Ambiguity connotes that an expression is equally capable of two or more interpretations. That is not something that can, on a plain reading, be said of paragraph 1(aa) of Schedule 1. I note, in any event, that the comments in T, Petitioner that were relied on by senior counsel for the third pursuer were obiter. Further, there would seem to be much force in the response of senior counsel for the defender which was to the effect that such an approach cannot be correct where it would mean that a Convention compliant interpretation would be required at common law in a pre 2 October 2000 case yet it has been specifically determined that the Human Rights Act itself would not so require.

The fourth pursuer's claim:
[15] The fourth pursuer's claim stands alone and is, in my view, in a different category from that of the third pursuer. The relevant question is: does he offer to prove that he had been accepted by the deceased as a child of her family? Families come in many different shapes and sizes. They may have, at their head, a heterosexual couple but that will not necessarily be so. An obvious example of one which will not is that of the single parent family, an entity which may be the result of choice, of breakdown in the parental relationship, or of the loss of a parent through death. Family members may be blood relatives but that will not necessarily be so. Adopted children will become family members, as will stepchildren, as might the child of a friend if a commitment to act in loci parentis to the child had been made prior to the friend's death. Further, in modern society, to be regarded as a family, it is not necessary to conform to the conventional model which has a heterosexual at its head. In Fitzpatrick v Sterling Housing Association, Lord Slynn @ [2001] 1AC @ p.38 referred to the hallmarks of a family unit as being:

"a degree of mutual interdependence, the sharing of lives, of caring and love, of commitment and support."

and Lord Clyde said, @ p.48:

"The word 'family' connotes essentially some grouping, usually of persons who are connected with each other by some particular kind of bond. But the precise content of the group depends upon the context in which the term is used. In some contexts it may require to be restricted to members who are linked by ties of consanguinity or affinity or both consanguinity and affinity. A family so linked may be said to exist even although they do not live together or even meet each other. On a narrower view the context may in some cases even require the group to consist only of children. On the other hand the tie may in particular circumstances consist of a close and intimate degree of companionship between people who are living together in one dwelling even if no relationship of blood or marriage exists between them."

[16] These comments underline the considerable width of the expression "family" and also the need to consider the context in which the expression is being used in any particular case. In the case of paragraph 1(c ) of Schedule 1 to the 1976, it seems clear to me that the expression is being used in the context of circumstances where the deceased adult, prior to his or her death engaged in a loving and caring relationship with the child in question and undertook responsibilities towards that child which were parental in nature. In normal course, such responsibilities could be expected to involve the promotion of the child's health, development and welfare, direction and guidance and the provision of financial support (see: Family Law (Scotland) Act 1985 s.4; Children (Scotland) Act 1995 s.1). An adult can, however, have such a relationship with and fulfil those responsibilities towards a child without being involved with another adult in a heterosexual relationship. Nor would an adult be disabled from so doing by reason of the fact that he or she cohabits in a same sex relationship. If that were so, the proposed adoption under consideration in T, Petitioner could not have received the court's approval that was, in the event, given.

[17] Further an approach to Schedule 1 which required "family" to be interpreted as referring only to a unit which has a heterosexual couple at its head would exclude all "accepted" children's claims where the deceased was not cohabiting in a heterosexual relationship and I cannot see that that is what Parliament intended. It would, for instance, exclude the claim of a child who had been accepted into family by a deceased grandparent or single aunt or friend notwithstanding that the child was as close to and as dependent upon the deceased as could have been expected if the deceased had been the parent. Such circumstances might easily arise where the child has lost its natural parent[s] and, in the case of the grandparent, can happen in some cases, for example, where children are born as a result of unwanted teenage pregnancy. Rather, it seems clear that Parliament's intention, in a provision which is as originally enacted not, as in the case of paragraph 1(aa), the result of amendment to meet a need arising from the fact of some couples choosing to cohabit rather than marry, was to afford the right to claim to all children who have lost, through the negligence of another, an adult upon whom they were emotionally and financially dependent in circumstances where the adult had accepted the obligations of fulfilling that role in parental mode. Whether that adult did so in the context of having with another adult a heterosexual, same-sex or no relationship is, simply, irrelevant. For the avoidance of doubt, I would add that I have considered whether the provisions of paragraph 2 of Schedule 1 lead to a different interpretation but I do not see that they do.

[18] In all the circumstances, I shall sustain the defender's first plea in law insofar as it relates to the third pursuer's claim and dismiss her action. I shall repel it insofar as it relates to the claim of the fourth pursuer and allow, in his case, a proof before answer.