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Does Fatal Accident Legislation Treat Gay Men and Gay Women Differently? - Gordon Exall, Zenith Chambers

25/10/14. As currently drafted the Fatal Accidents Act 1976 could treat gay men and gay women differently. Here I look at the reason why and examine the possible solution.

SECTION 3(3) OF THE FATAL ACCIDENTS ACT 1976

Section 3(3) of the Act provides that, in assessing damages, the court disregards the prospects of re-marriage and marriage of a widow.

“(3) In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re-marriage of the widow or her prospects of re-marriage.”

The reason for this is because it was thought distasteful for a judge to have to re-assess the prospects of re-marriage of a widow. Essentially the (then invariably male) judge to look her up and down and consider whether she was attractive enough to find another husband. (I have read transcripts of some of the cross-examination of widows that took place and they are very, very awful).

WHERE DOES THIS LEAVE GAY COUPLES?

Section 3(3) was never amended to deal with civil partnerships. It was not amended at all following the Marriage (Same Sex Couples) Act 2013. We have discussed this before. An amendment was not necessary because the Marriage Act itself defines husband and wife

Schedule 3 Part 2 of the Act states:

“(2) The following expressions have the meanings given—

(a) “husband” includes a man who is married to another man;

(b) “wife” includes a woman who is married to another woman”

However it goes on to define the term widow and widower.

“(c) “widower” includes a man whose marriage to another man ended with the other man’s death;

(d) “widow” includes a woman whose marriage to another woman ended with the other woman’s death;”

SO THE LAW TREATS FEMALE GAY COUPLES DIFFERENTLY TO MALE GAY COUPLES

On the face of the legislation it is clear that the court must disregard the prospects of re-marriage or actual re-marriage of a lesbian widow. There is no such statutory rule in relation to gay men.

IS THERE AN ANSWER?

The statute has discriminated against widowers for years. However, on the whole, this has been ignored. This is because of the wide ranging definition of benefits in Section 4 of the Fatal Accidents Act.

“In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded”

In Topp -v-London County Bus (South West) Ltd [1993] 3 All ER 448, May J stated (as an obiter comment since he found against the plaintiff).

“It is agreed that I am bound by the Court of Appeal decision of Stanley v Saddique [1991] 1 All ER 529, [1992] QB 1 to ignore the effect of Mr Topp’s possible remarriage, but Mr Phillips reserves the defendants’ right to argue this point in a higher court“

STANLEY -v- SIDDIQUE

I am, however, not certain that the issue was decided directly in Stanley -v- Saddique. The Court of Appeal was considering an argument that the children of the family had not suffered a loss because the father, who took over caring for them, offered better care than the deceased mother.

Purchas L.J. stated:-

“The problem is to decide whether in construing the new s 4 there is any justification for construing the words ‘benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded’ as in any way being restricted or whether they should be given the full ambit of the word ‘otherwise’. Mr Clegg submitted that the specific exclusion of a widow’s remarriage or prospects of remarriage from the assessment of damages provided in s 3(3) indicated that ‘otherwise’ must be restricted in some way otherwise s 3(3) was otiose. He suggested that the exclusion should be restricted to direct pecuniary benefits. However, if this course is taken the word ‘otherwise’ would not be sufficiently wide to reinstate the various rights to benefits which had been progressively introduced since the 1908 Act culminating in the sections of the 1976 Act which were wholly replaced by s 3(1) of the 1982 Act. As a result of the passage of this Act none of the pre-existing statutory exemptions from the deductions of benefits from Fatal Accidents Acts damage survived unless it is through the medium of the word ‘otherwise’.It seems inconceivable that Parliament would have effected a wholesale repeal of all the long-standing previous statutory exceptions from the deduction of benefits by a sidewind of this sort with the exception of the exclusion of the prospects of remarriage on the part of the widow (semble but not the widower). In my judgment, the preferable construction is that advanced by Mr Ashworth, namely that s 3(3) was left in as being a particularly significant question of policy, but that by s 4 Parliament intended to further the departure from ordinary common law assessment of damages for personal injuries by the artificial concept which has for many decades been the basis of damages recoverable under the Fatal Accidents Acts.”

Ralph Gibson L.J. was not confident about this issue:

“As to the point of law, based on the construction of ss 4 and 3(3) of the Fatal Accidents Act 1976 as amended, Iwas at first inclined to the view that the concept of ‘benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death’ must be held not to extend to the effects of remarriage which are covered specifically by s 3(3) to the extent there provided. I have, however, with no great confidence that we have correctly understood the intention of Parliament as expressed in these provisions, reached the conclusion that the preferable construction is that expressed by Purchas LJ for the reasons given by him”

SO WE ARE FAIRLY CONFIDENT BUT NOT CERTAIN THAT THERE IS NO DIFFERENCE

The matter was going to be raised at a higher level if it became an issue on appeal. On the face of the decision in Stanley -v- Siddique section 4 applies to all relationships. However the law on this topic is tentative. For the time being:

  • Gay women have the definite rights set out in statute in section 3(3)

  • Gay men may have the benefit of section 4.

  • Civil partners (of whatever sex) may have the benefit of section 4.

Gordon Exall
Zenith Chambers

Image ©iStockphoto.com/Muenz

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