In sickness and in health…What constitutes living with someone as ‘husband’ or ‘wife’ for the purposes of a services claim?

The recent case of SD v Graham’s Dairies Ltd  [2016] CSOH 151 considered the question of who constitutes a ‘relative’ for the purposes of an award for services rendered to an injured person in a personal injury action under the Administration of Justice Act 1982. Section 8 of the Act states:

“8. (1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith…”

The term “relative” is defined at section 13(1) of the Act:

“13. (1) In this Part of this Act, unless the context otherwise requires — … “relative”, in relation to the injured person, means —

(a)  the spouse or divorced spouse;

(aa) the civil partner or former civil partner;

(b)  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;

(ba) any person, not being the civil partner 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 the civil partner of the injured person;

(c) any ascendant or descendant;

(d) any brother, sister, uncle or aunt; or any issue of any such person;

(e) any person accepted by the injured person as a child of his family.”

The case of SD v Graham’s Dairies Ltd was concerned with the definition under section 13(1)(b) and the interpretation of the phrase “living with the injured person as husband or wife”.

The circumstances of the index incident were largely admitted. In 2014, in the normal course of his employment, SD was injured whilst delivering milk in a lorry to a supermarket. He became trapped between several crates of milk and the lorry wall for some ten to fifteen minutes and injured his back as a result of this. The matter went to a Proof (civil trial) on causation and quantum, the main focus of which was whether the incident had accelerated the onset of symptoms that were related to the pursuer’s pre-existing condition by roughly 18 months, or whether it had caused an exacerbation of pre-existing symptoms for about three months. The judge, Lord Armstrong, favoured the former approach, i.e. “that the effect of the index accident was to accelerate, by a period of 18 months, the onset of a condition which the pursuer would in due course, in any event, have come to suffer.”

In assessing quantum, the court considered whether services rendered to the pursuer by his partner, SH, could form part of the claim under the Administration of Justice Act 1982. At the time of the proof, the pursuer was married, but separated from his wife. He had an ongoing relationship with his partner, with whom he had a daughter but did not live due to a preference on the part of his partner’s daughter from a prior relationship to live with her grandparents. The question to be answered was whether SH (his partner) fell within the definition of ‘relative’ under section 13(1)(b) of the Act.

The defenders made reference to observations by Lord Stewart in the case of McPake v SRCL Limited 2014 Rep LR 41, that it had been of significance in that case that there was no evidence of an exchange of rings, nor of shared bank accounts, financial support etc. The defenders also drew his Lordship’s attention to the case of Lawrie v Lanarkshire Health Board 1994 SLT 633, in which a claim for services under section 8 of the Act was not allowed on the basis that the pursuer’s girlfriend in that case had lived apart from him at the time of the index incident.

Lord Armstrong considered that there were several matters to be taken into account when determining whether a couple could be said to be living as man and wife. These included: ‘the manner in which the couple lived together and their reason for doing so; the extent to which the couple were committed to the relationship and the extent of the time they spent together; whether assistance was provided in intimate respects; and whether, where relevant, there was assistance in building up self-esteem (Paterson v Paterson 2013 Rep LR 13, paragraphs 44 & 45)… The hallmarks of a family unit are “a degree of mutual interdependence, the sharing of lives, of caring and love, of commitment and support” and the term “family” connotes essentially “some grouping, usually of persons who were connected with each other, by some particular bond” (Telfer v Kellock 2004 SLT 1290, 1294 B). In the context of whether people are or were living together as husband and wife: “working out whether a particular couple are or were in such a relationship is not always easy. It is a matter of judgement in which several factors are taken into account… What matters most is the essential qualify of the relationship, its marriage-like intimacy, social and financial interdependence… the presence of children is a relevant factor in deciding whether a relationship is marriage-like…” (Ghaiden v Godim-Mendoza [2004] 2 AC 557, per Lady Hale, at paragraphs 139, 141).’

Lord Armstrong accepted that the pursuer and SH had been in a relationship together since about November 2012, they had a daughter together and that SH had provided services to the pursuer following the index accident. He accepted that, whilst they did not live together under the same roof at the time, this was to accommodate the wishes of SH’s daughter from a prior relationship. It was of relevance that the pursuer named SH as his next of kin when he was taken to hospital on the day of the index accident. Whilst SH’s contribution to the pursuer’s household increased following the index event, Lord Armstrong felt that an inference could be drawn from this as to the nature and depth of the relationship prior to that time. Lord Armstrong was satisfied that the relationship was such that it could ‘properly be characterised as being akin to marriage’ (Lord Woolman, Paterson v Paterson). He felt satisfied that, against the background of modern living, SH fell within the definition of section 13(1)(b) of the Act and granted an award for services provided by SH to the pursuer.

This decision represents a positive step towards bringing the law in line with the more modern understanding of “living as a couple”.