Examination of Witnesses (Question Numbers
73-99)
PROFESSOR HUGH
BEALE AND
PROFESSOR ANDREW
BURROWS
26 JANUARY 2010
Q73 Chairman: Welcome, Professor
Beale and Professor Burrows. Both of you, as I understand it,
were members of the Law Commission at relevant times when the
bits you know most about were being considered, and we are very
glad to have you because these are complex matters which do affect
our constituents in very difficult circumstances, plainly if they
happen to suffer a very serious accident, and involve sometimes
quite intrusive issues about relationships. Therefore, we are
very anxious to tease out some of these issues, not least so that
when both Houses of Parliament come to look at the final legislation
some of them can have been resolved and others will be well understood,
because they are probably issues on which members want to take
a view. The Law Commission recommended that the new category of
claimant should cover "any person ... who was being wholly
or partly maintained by the deceased immediately before the death
or who would, but for the death, have been so maintained at a
time beginning after the death". The reading of the draft
Bill is slightly different: "Any person ... who was being
maintained by the deceased immediately before the death."
What difference would that make?
Professor Burrows: Can I just
explain, Chairman, that the idea of this particular provision
was to stop the continual adding on to the list of those people.
In other words, one had got to the point where we thought we should
do this as a matter of principle. The idea is to try and cover
all those who suffer dependency loss; that is the idea behind
it. I think the difference in terms of "or who would have
been maintained, but for the death" would produce some anomalies,
because it is not quite the principled solution that we ourselves
would have wanted. For example, it would not cover the situation
where you have got a cohabitant who does not satisfy the two-year
rule, so does not fall within the existing list, but who would,
for example, have been going to give up their job to have a child
and would then have been maintained by the deceased. That would
not be covered by the present formulation but would have been
covered by our formulation.
Q74 Chairman: Is that in a case where
there was an established pregnancy—
Professor Burrows: It could well
be.
Q75 Chairman: —or simply a
hope for the future?
Professor Burrows: It would be
a situation where you have got an established pregnancy. You would
have to always establish, in this area of the law, that you have
suffered the loss—that is taken as read. The question is
who is able to claim, and that would be one situation that would
not be covered by the present drafting. It also would not cover
the dependency loss of a child en ventre de sa me"re
who is not the deceased's child but would have been supported
by the deceased while he was in a marriage-like relationship with
the parent. These are just two examples I have thought of. You
are going to get anomalies on the margins if you do not quite
follow the principled approach, and I think the principled approach
is as we set it out.
Q76 Dr Whitehead: The Bar Council
suggested to us some clarifications on the definition of the word
"person". They were concerned that that might be necessary
in order to prevent bodies such as cats' homes claiming that they
were dependent. Is that something that needs clarity?
Professor Burrows: Yes, that is
a correct criticism. It was never intended to include non-human
persons as claimants, and there is a standard legal way of doing
that. You use the word "individual" instead of "person".
That is the standard legal way of ensuring that one is talking
about human claimants here and not bodies. The cats' home point,
in my view, should have been covered and I think it is very easy
to do so.
Q77 Dr Whitehead: Another thing the
Bar Council expressed concern to us about was the wording of the
new category of people who could claim dependency damages concerned
the idea of the person being dependent on the deceased immediately
before the death. They pointed out that, of course, a number of
such deaths arise when people have been in hospital for considerable
periods before death and, therefore, maybe the definition should
be changed to "before the accident", or "before
the relevant accident", as opposed to the death itself, ie,
the stay in hospital is associated with death but it is not the
death itself.
Professor Burrows: Yes. I think
that is likely to be covered if you went so far as to say, as
we did, "or would have been maintained, but for the death",
but, I think, to be absolutely clear, you are talking about someone
who is injured and is not realistically, on the scenario, ever
going to satisfy the idea that they would have maintained the
dependent but for the death. I think, to make that absolutely
clear, you would want some drafting change that said something
like "or would, but for the death, or the injury which led
to the death, have been so dependent". It is a minor point,
but I think that would be a correct amendment, in my view.
Q78 Julie Morgan: The Law Commission
proposed that the court would consider the fact of an engagement
when assessing damages, but the Government has rejected that view
because it believed it would lead to unnecessary intrusion into
the bereaved's personal life. Do you agree with what the Government
is saying?
Professor Burrows: It comes in
at various stages. There are actually two separate clauses that,
I think, one needs to be looking at. In relation to the proposed
clause (2), what one is there dealing with is the effect of remarriage
of the dependant. The present law is in section 3(3) of the Fatal
Accidents Act, which says that, basically, one has to ignore the
remarriage of a widow, or the prospects of remarriage, when awarding
damages to the widow, and that is principally what the new clause
(2) is designed to reform. In relation to that, I think that the
present clause is more or less satisfactory, but there is one
major point that I think has been overlooked, unless I have misunderstood
or missed something, and that is that a clause seems to have gone
missing. There does not seem to be anything—and this would
reflect the policy, I should say, that the Government has intended
to put forward—about the prospects of remarriage being ignored
by the court, which was part of the purpose. In other words, the
clause that we had proposed, which was our draft clause (3A)(4),
seems to have gone missing entirely. It was in the context of
that clause that the engagement issue came up. What we were suggesting
was that you ignore the prospects of remarriage unless you have
got somebody who is already engaged, because then you have got
some sort of objective evidence. I concede that that is perhaps
a marginal point, but I think the important point is one has to
have that clause in the Bill. It will not work properly without
that clause. You are asking me a question about a missing clause
actually, the engagement question, in relation to this issue.
It also comes up later, I think, in relation to the question of
bereavement damages. In terms of the loss of dependency damages,
I do not think it is too significant, but I think you have to
have this clause that tells the court you cannot take account
of the prospects of remarriage, and that just is not there.
Q79 Julie Morgan: A financially supportive
cohabitation of more than two years is defined as existing when,
at the time when the action is brought, A lives with another person,
B, as B's husband or wife or civil partner. Does this formulation
mean insurance companies are likely to resort to private detectives
or pursue very intrusive cross-examination?
Professor Burrows: This provision—I
think we are talking about now clauses (3) and (4)—is dealing
with the issue of the prospect that the relationship between the
dependant and the deceased would have broken down, and the question
is what one does about that particular issue. Our basic policy,
which the Government has accepted—it is very similar to
our own—is that that should be ignored, because of intrusive
enquiries, except where you have got some sort of clear objective
evidence of the breakdown. That is what clauses (3) and (4) are
designed to do. I do not think there is the problem of intrusion.
That was the precise fear that one had, which is why one came
out with proposals that, basically, you ignore all that, precisely
for the sort of intrusion that one is concerned with, except where
you have got some sufficiently clear, objective evidence that,
for example, someone is petitioning for divorce, or petitioning
for separation, or has actually separated.
Q80 Chairman: Does this situation
arise if the case has dragged on for three years, perhaps on matters
unconnected with this particular aspect, and cohabitation has
developed in the latter two years of those three? Is that engaged
by this clause or not?
Professor Burrows: You are back
on clause (2) in a situation where you have a dependant who has
now entered into another relationship, and the question is whether
that should be taken into account. Can I check what the actual
wording of that would be? Yes, in that situation you would take
that into account, and one might say, why not? You have a clear
indication that that relationship has now occurred and, of course,
the important issue is not the relationship, it is the maintenance
within the relationship. Otherwise one ends up with situations—the
classic dilemma that we were looking at here—where somebody
is widowed, she then remarries the billionaire and you have to
ignore that. She is still entitled, under the law today, to exactly
the same dependency loss. You are not allowed to take account
of her remarriage to the billionaire.
Q81 Chairman: Conversely, if she
builds up a relationship a year after the accident with someone
who, although not a billionaire, might be capable of supporting
her, the insurance company is going to start looking around and
saying, "Are these people cohabiting, in which case we are
not liable for damages."
Professor Burrows: I think that
what has been laid down here is that there must have been a relationship
for two years, and in relation to that it may well be correct
that the insurance company would want to make that point, but
a relationship together for two years seems to me a fairly objectively
provable point. One already has that in the very list of cohabitants
as it is.
Q82 Mr Turner: I am sorry to throw
myself in a bit late to this, but if you have a man and a woman
and the man lives at home and is ill, and so on, and the woman
works, say, up here, and only goes down to her home about once
a week, but what we do not know is that she has got somebody up
here, do we assume that because there is no evidence it is not
happening?
Professor Burrows: No, this goes
back to normal standards of proof within the law. The general
standard of proof in civil matters is on the balance of probabilities,
so one would be talking about proving those matters in the normal
way, but this goes on, in any event, within the present law. One
has to look at what the loss has been and what you might call,
if I might put it in what might sound a rather crude way, the
benefits financially of death. One should not ignore it if someone
has now entered into a fully financially supportive relationship,
one should not as a matter of principle ignore that, unless one
thinks it is entering into encouraging intrusive enquiries, and
I do not think this does do that.
Q83 Chairman: Does the Bill require
further guidance for judges on assessing the impact of a new parental
relationship on a child's dependency damages, given that the child
has no right to legal support from the new partner?
Professor Burrows: I am not quite
sure what is meant by that question. I do not think there would
be any difficulty for the judges. In these sorts of issues the
judges often have to make, under the existing law, decisions about
what the child has lost in the light of all the evidence, and
that will depend on who had parental obligations, and so on. I
do not see anything in these provisions that would increase any
difficulty on this over and above the present law.
Q84 Chairman: The difficulty arises,
does it not, in a case where a child, perhaps a child entering
the teenage years, is not comfortable with the new relationship
and is not certain as to their position, has no particular legal
protection in terms of parental support from the new partner and,
at that very point, an insurance company is arguing in front of
a judge that this new relationship relieves the damages obligation
so far as that child is concerned. It is quite a worrying situation,
is it not?
Professor Burrows: We have got
a situation, as you are positing it, where the child is the child
of the deceased, so they are within the list. The question then
is what is going to be the effect of a new relationship of, let
us say, the mother and the impact on the child?
Q85 Chairman: Yes.
Professor Burrows: That is already
the present law. The Bar Council, I think, made the point that
one might want to take out child dependants, but the present law
is that the court takes all the facts into account except for
this peculiar provision, section 3(3), whereby you are not allowed
to take account in a widow's compensation her remarriage or prospects
of remarriage. Everything else is open to the normal standard
of proof and all the evidence. The idea that somehow child dependants
should be taken out from these provisions: you would have to change
a lot of the existing law to do that. It is already going on.
The Bar Council, it seems to me, made a point that this would
be prejudicing child dependants, but that is already the legal
position and, I think, quite rightly so. The court has to look
at all the evidence, and I do not see any reason why that sort
of evidence should not be something for them to look at.
Q86 Chairman: Would you say that
judges tend to have regard to the uncertain legal position of
a child in those circumstances?
Professor Burrows: Yes.
Q87 Chairman: That is to say, uncertain
as to how reliable future support is?
Professor Burrows: Absolutely.
Q88 Chairman: Or, indeed, future
ability to live in the home with a new partnership?
Professor Burrows: Yes, they have
to judge the probabilities of support. It is not just the relationship,
it is the likelihoods of maintenance involved. This is something
they have to weigh up all the time.
Mrs Riordan: The Government has adopted
a much more restrictive approach than that recommended by the
Law Commission. Does this stem from a different conception of
the reason for bereavement damages, or is there another reason
for it?
Q89 Chairman: I should have said
that we are moving on to bereavement.
Professor Burrows: This is clause
(5). It is true that these matters are very difficult. Everything
is involving a balance between seeking to reflect an award for
grief—and we are now talking about non financial loss; it
is a bereavement damage sum; it is not the dependency loss—and
not opening up too many claimants. That is the balancing act that
one has to achieve here. The Government has not gone as far as
we proposed. They have stopped with parents of deceased children
under 18, and they have, similarly, only allowed children under
18 of those who are deceased. We ourselves would have gone considerably
further. I think we thought the really controversial extension
would be to siblings, brothers and sisters. We ultimately went
that way in the light of what consultees told us, but I think
we thought, at the very least, one ought to go to parents of deceased
children, whatever the age of the child, and vice versa: we thought
that children should be able to recover for the decease of their
parents whatever their age. If you have got a deceased who is
aged 30 we thought his 50-year-old parents should be entitled
to bereavement damages. Similarly, if the deceased was aged 50,
we thought that the 30-year-old child should be entitled to bereavement
damages. We are, after all, talking about a wrongful death here.
Q90 Mrs Riordan: There are advantages
and disadvantages of using an age threshold to limit the eligibility?
Professor Burrows: Yes. Clearly
you have then got an issue about quantum. How much are you going
to award? The merit of what the Government have decided is that
you have got fairly standard sums. You would end up with nobody
getting more than £5,900, although you may get several of
them actually getting that if you have got multiple children.
They would each get, as you can see, half the amount, £5,900.
The proposal we put forward to stop too much being awarded was
an overall cap, which we fixed at three times the award. At the
time it was £10,000, so the cap was £30,000, and then,
however many claims you got would divide equally the £30,000,
if you have got more than three. Up to three they would each have
got the full amount of £10,000. Thereafter, you would give
them an equal sum of £30,000. If you were minded to suggest
extending the list to all parents and all children, I would suggest
to you that that would be a perfectly sensible way of dealing
with the quantum problem.
Q91 Mrs Riordan: It did seem rather
unfair that if you had just gone 19 years old you would get nothing.
Professor Burrows: Absolutely.
Whenever you draw these lines you are going to run into people
who come along and say, "I am 18 and a day", or, if
you fix it at 25, again, obviously, anybody who is just over that
would be cut out.
Q92 Mrs Riordan: Of course children
of the deceased who are under 18, as you said, at the time of
the death would be eligible for half the sum of the spouse or
partner. It is sort of putting a lower price on the grief of minor
children when compared to a spouse.
Professor Burrows: Exactly. If
I might put it this way: an advantage of the proposal we had is
that you would avoid that because everybody in one single wrongful
death would all get the same amount. It might be that if you had
six claimants all of them would be getting less than in another
wrongful death where there were two claimants, but in relation
to that one wrongful death each of those people you are compensating
would be getting the same, and that seemed to us to be a good
compromise.
Q93 Chairman: Why did it seem important
to you to cap the liability of the insurance company rather than
to meet the legitimate needs and demands of the categories of
people you have just described?
Professor Burrows: I think this
is always a balance in terms of how much do you really wish society
to pay for these sorts of sums. They are, in a way, token sums,
because they are trying to reflect the upset and grief, primarily,
in relation to a wrongful death, but I think we were persuaded
that to have very large sums being paid in relation to this was
something that the insurers would legitimately feel was unacceptable.
Q94 Mrs Riordan: Step-parents are
not eligible for bereavement damages in the draft Bill. What are
the evidential issues with step-parents—I am a step-parent—that
are just as involved with the step-children as birth parents?
Is there a satisfactory test that could be applied so that they
could become eligible, where appropriate?
Professor Burrows: We ourselves
did not go as far as ultimately including step-parents. I think
people use the term "step-parent" these days often to
mean more than one category. There is one I would class as the
strict category, where you are actually marrying the parent of
the child, but there are also people who use the label step-parent
in a situation where you have set up a relationship with the parent
of the child but without any marriage. You could say that there
is an easy way of defining the first of those, and I do not think
there would be any difficulty, the law has done it before, to
include that strict definition of step-parent. The question then
is whether one wants to do that without including the other category,
and then, I think, that does open up slightly more difficult problems.
Chairman: Let us move on to have a look
at gratuitous care following personal injury or fatal accidents.
Dr Whitehead?
Q95 Dr Whitehead: I would like to
ask questions about gratuitous care where it is provided by the
defendant. Where it is provided by the defendant before the date
of the trial, the draft Bill makes that gratuitous care irrecoverable
but then does allow the award of damages for the same care if
it is provided after the date of the trial. Given that it is extremely
likely that the damages will be paid out by insurers rather than
individuals, is that not likely to penalise potentially deserving
parties?
Professor Burrows: Yes, it is.
In my view this is completely contrary to what we ourselves proposed.
I cannot understand what has actually happened in relation to
this. Our proposal was that you should have no legal obligation
in relation to future care because of the uncertainties of the
future;—and we thought it very important to overrule the
decision of Hunt v Severs, where no damages were awarded
where the carer was the defendant, for precisely the reason you
have given, and others, and that the overwhelming majority of
our consultees supported it.
Q96 Chairman: Can you remind us of
the case again?
Professor Burrows: Hunt v Severs
was a case where the defendant was negligently driving a motorbike.
His then girlfriend was on the bike and she ended up, as a result
of his negligence, being rendered paraplegic. He then cared for
her for a very considerable time and married her. No damages were
awarded in respect of his care, as they would normally have been,
because he was the defendant. The logic of the common law position
is that you should not be awarded damages which one has to then
in a sense be paying back to the same party, but our argument
in the report was that you do have to override the logic, because
that is the correct policy. It is not fair that somebody in that
situation is deprived of damages. It has all sorts of unpleasant
consequences and, as has just been said, these people are insured
in any event. Our proposal was that you should award damages where
the carer is the tortfeasor and, I have to say, I just do not
understand clause 7(4) which completely reversed that. I do not
understand 7(2)(b)—this business about imposing a legal
obligation for the future which, I think, would produce problems.
For example, if at trial the claimant is awarded, let us say,
£10,000 for future care and the assumption would be that
that is going to be carried out gratuitously, but then things
change and, in fact, the care is carried out commercially so that
the claimant spends the £10,000 on commercial care; according
to this, they would still be bound to legally pay the gratuitous
carer the £10,000 that they are bound to pay across, and
that cannot be right. In my view, they are putting the interests
of the carer above the interests of the claimant. If I might put
it this way, I would strongly urge you in relation to clause 7
to delete 7(2)(b) and to delete 7(4), and that would, more or
less, achieve exactly what our proposal was, which the overwhelming
majority of our consultees supported. I just do not know what
has gone on with this clause, I am afraid.
Q97 Dr Whitehead: What about where
someone turns out to be only minimally negligent, say, 10% or
15% negligence is determined? How might that affect a blanket
ban on paying for gratuitous care by a defendant? Should there
not be an element of discretion?
Professor Burrows: Exactly. If
you keep this as it is, you run into that sort of precise problem.
That was one of the reasons why we recommended the reversal of
Hunt v Severs.
Q98 Dr Whitehead: You have mentioned
the question of uncertainties about the future as far as future
gratuitous care is concerned. The Government has not accepted
the Law Commission's recommendation. I was going to ask you what
are the pros and cons of that, but I suspect you have rather more
cons than pros in your view?
Professor Burrows: Yes, I have
to say, I do not understand what has happened in relation to this
particular clause. As I say, it diametrically reverses our proposals,
which were supported by an overwhelming majority of consultees.
Q99 Dr Whitehead: You do not see
there is a line of argument which might support it?
Professor Burrows: No.
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