HC Deb 19 October 1982 vol 29 cc294-7


Solicitor-General for Scotland

I beg to move amendment No. 4, in page 11, line 29, at end insert— '(aa) any person, not being the spouse of the injured person, who was, at the time of the act or omission giving rise to liability in the responsible person, living with the injured person as husband or wife;'.

Mr. Deputy Speaker

With this it will be convenient to take Government amendment No. 10.

The Solicitor-General for Scotland

These two amendments are possibly the most important of the amendments that I am moving. They follow the Government's further consideration of the scope of relatives for the purposes of an action for damages. It was concluded that as a significant minority of caring and stable relationships now exist outside marriage, it would be unjust to deny to an injured person's—albeit unmarried—partner the right to damages. In order to be consistent the same extension is applied to the Damages (Scotland) Act 1976 as to part II of the Bill, in respect of damages for both loss of support, which may be claimed by relatives of the deceased, and loss of society, which are restricted to claims from the immediate family.

As hon. Members will be aware, a similar amendment has been made in the other place to the Fatal Accidents Act 1976 for England and Wales. This is one area in which I think that it is right that the two laws should keep in step in recognising the position of cohabiting couples. They will differ in terms of drafting. The hon. Member for Glasgow, Garscadden (Mr. Dewar) will appreciate that the Scottish amendment seeks to reflect the wording employed in the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

Although the amendment is small it is important, and I hope that it will be generally welcomed by the House.

Mr. Dewar

The most important amendments are not always the longest. I agree with the Solicitor-General for Scotland that this is a matter of some moment. It is another step on a road down which we have travelled fairly fast in recent years in Scottish law, whereby we have put cohabitees, at least in some ways, in the position of a spouse. On the whole, although I know that some people have reservations, it is the right direction to take.

The amendment was introduced in response to debates in Committee on 6 July 1982, c. 26–9. Some of us asked, not just for a broadening of the term "relative"—we were arguing a case that originally appeared in Pearson, if I remember correctly—but that claims that appear in clauses 8 and 9 should be available for the loss of any third party, not merely a relative. That found no favour with the Government, and it is now water under the bridge. As second best, the suggestion was that the cohabitee should be put on the same footing as other relatives who were covered by clauses 8 and 9. In fact, the Government have gone considerably further than that, in that they have made a similar change in the Damages (Scotland) Act 1976.

I want to raise two small matters with the Solicitor-General for Scotland. One concerns definition. He mentioned the Matrimonial Homes (Family Protection) (Scotland) Act and the definition of cohabitee there. Clearly, it is somewhat different from the situation in England. Under the new section 1(3)(b)(iii) of the Fatal Accidents Act 1976, set out in clause 3(1), a definition includes a period of two years together as a precondition of being accepted as a cohabitee. I assume that we do not need anything like two years. It is a matter of the facts that are before the court, and the standard of proof will be very much like a marriage of habit and repute, which is now seldom used, but its occasional appearance is perhaps to establish the right to sue. That will now not be necessary. In a sense, this will become the establishment of a marriage of habit and repute, or the supposition of one, which will be challengeable in terms of objecting to the competency of this head of claim. I hope that the Minister will confirm that.

The second minor point is again a matter of detail, but it is one of more substance on which I hope the Solicitor-General for Scotland will give his views. At one point in Committee he said that we were putting ourselves very much in line with the English in this respect. Here there is an argument for doing that, because it would be unfortunate if a cohabitee in the same situation north and south of the border had different rights. Clause 3(4) says that in assessing damages for the person who is a cohabitee and whose action is founded on these provisions as a cohabitee, the court shall take into account the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together. It is clear that that is an attempt that must be taken by the couts as meaning that following the assessment of damages in England the cohabitee will get considerably less. They will have to take into account that there was no enforceable right of financial support. In Scotland there is, as I understand it, no similar weakening. Once the cohabitee has been accepted by the courts as being a cohabitee for the purposes of the Act, he or she will be treated in exactly the same way, when it comes to the assessment of damages or compensation under the 1976 Act, as a spouse. There is a sharp distinction between the English and Scottish positions and I am anxious to underline it as a matter of importance.

8.45 pm

No one can be certain about these things, but I am told that the going rate for an action under section 1 of the 1976 Act for loss of society is about £6,000 for a spouse. A recent Appeal Court judgment set the figure at about that level. Presumably the cohabitee is being dealt with on the same basis. As we do not have the statutory weakening of his cr her position that is present in the English legislation, presumably the Scottish courts will have to treat a cohabitee on all fours with a spouse. If cohabitees are dealt with in the same way when loss of support is considered, we could be considering substantial amounts. There will not be a great many actions of this sort, but when they occur large sums could be at risk.

If an action is raised and it succeeds on the basis of a party being a cohabitee, am I right in thinking that in the absence of a weakening of the cohabitee's position on assessment of damages the courts will have to treat the cohabitee as if he or she were a spouse raising a similar action under section 1 the 1976 Act?

I welcome the provision to which the amendment is directed. It is clearly an attempt to bring the law of damages into line with social reality. We have been going down this road quite often recently. The Solicitor-General for Scotland referred to the matrimonial homes legislation, which gives cohabitees limited but important occupancy rights in homes which they have shared and of which they are cohabitees. I believe that it is proper that the law should take these matters into account.

I know that there will be those in Scotland who will see this approach as a blurring of the special distinctions of marriage and its entrenched position. They will consider that in a sense we are attacking the place of marriage in society by putting tie cohabitee, in a number of areas, in exactly the same position as a spouse. Someone argued to me forcefully that if we adopt this approach to the matrimonial home in terms of damages, actions and the death of a cohabitee, we should arrive at the position which they seem to have reached in America, often at ludicrous expense, of saying that if a man and and woman are living together, even if not in wedlock, they should be treated as if they are man and wife with all the rights that would follow upon a divorce. That lies, in a sense, at the end of the road that we are taking. That may be an argument for the future.

The modest change that we are making tonight will greatly strengthen :he position of a cohabitee whose partner has been killed and where liability may arise. The change can be fully justified and I make no complaint that it is being made. Indeed, I positively welcome it.

The Solicitor-General for Scotland

It is true that in what we are doing for Scotland we are not making elaborate provisions along the lines of those which have been provided for England and. Wales. It will be a matter of fact for the courts to determine. For Scotland the category of relative is being extended to include a cohabitee. In the 1976 Act the category of relative is extended to include a cohabitee or where the claim may be for loss of society to a member of the deceased's immediate family.

The short answer to the hon. Gentleman's second point is that yet again it is a matter of fact for the courts to determine because there is no rigid tariff in the Scottish or English courts to determine what is to be the award for loss of society to any member of the deceased's immediate family. The hon. Gentlman may be concerned about what is provided in the English part of the Bill in part I, but there in no comparable provision in the Scottish part of the Bill. It will be for the corms to sort out the matter as a matter of fact. I do not think that there is anything sinister about that, nor do I believe that there is anything for the hon. Gentleman to be unduly concerned about.

Mr. Dewar

I did not think that there was anything sinister. I hoped that there would be something positive. I took the fact that there was no such provision in Scots law as a broad hint from the legislature, although I recognise that what happens in Parliament is not binding or necessarily persuasive in the courts. I hoped that the courts would take that omission as meaning that the cohabitee should be treated on all fours with the spouse for the purposes of any action under the Bill or the 1976 Act.

The Solicitor-General for Scotland

I cannot elaborate on what I have already said. The court must look to the facts and circumstances. It must determine whethr the couple are cohabiting, the length of time they have cohabited and support that might be given. Matters such as that would have to weighed in the balance, as they are when one looks at the claim that a wife or other members of the family may have, after the husband has died. The extent of the claims of the immediate members of the family is determined. The amendment does not create any problems that do not exist already for the courts in trying to determine the appropriate level of an award.

Amendment agreed to.

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