Conclusions and recommendations
Damages under the Fatal Accidents Act
1. Damages
in the civil courts are intended to compensate the victim of a
wrong and, as far as possible, put right that wrong. Undercompensation
of victims in personal injury and fatal accident cases is not
only unjust but is likely to lead to the victim or the state paying
for the consequences of the negligent party's act. We acknowledge
that some of our recommendations may lead to a small increase
in costs to insurers, although other of our recommendations will
assist in preventing unjustified cost. It is for society or Parliament
on society's behalf to decide the framework for setting the levels
of damages and for insurers to compete to provide the lowest cost
response to that framework. By increasing legal certainty our
recommendations will allow parties to settle earlier, thereby
reducing both court costs and the upset caused by prolonged legal
proceedings in fatal accident cases. (Paragraph 6)
2. We agree with the
Law Commission that the new category of claimant should include
those whose dependency would have begun after the death. The claimant
in such a case would be required to prove to the ordinary civil
standard of proof that he or she would have been supported by
the deceased; therefore we do not envisage that speculative or
trivial claims will increase in number. In our view incorporating
the broader definition gives effect to the intention behind the
bill to allow a degree of flexibility which is required to keep
pace with changes in familial relations in modern society. (Paragraph
24)
3. We agree with the
Government that the new category of claimant does not require
a qualifying period to achieve legal clarity as all potential
dependents will be required to evidence their claims. We would
go further and conclude that the introduction of a qualifying
period would exclude those whom this category is intended to benefit,
for example a co-habitee who had lived with the deceased for less
than two years. This would undermine the intention behind the
creation of a new category, which is to introduce some flexibility
and allow it to keep pace with changes in society. (Paragraph
28)
4. It is highly desirable
for all parties that the new category of claimant be clearly drafted
to avoid uncertainty and satellite litigation. We recommend that
the wording "immediately before the death" in clause
1(2) of the draft Civil Law Reform Bill be amended to read "immediately
before the death or the accident that led to the death".
(Paragraph 33)
5. We recommend that
clause 1(2) of the bill provides that a claimant may be "wholly
or partly" maintained by the deceased. The new category of
dependent is not intended to apply only to those who were solely
supported by the deceased. The courts, however, are required to
interpret the new category as it is stated on the face of the
bill. Failure to include "wholly or partly" could lead
to a restrictive interpretation. Parliament has a responsibility
to make its intentions clear. (Paragraph 37)
6. We have some sympathy
with the view that, once a claimant has proved a "need"
for maintenance and his or her dependence on the deceased, further
obstacles to their claim are unnecessary. Nevertheless, on balance,
we are satisfied that the requirement for a "need" to
be "reasonable" should assist the court rather than
complicate its deliberations. The courts are experienced in assessing
whether a claim is reasonable and public policy requires that
unreasonable claims should be discouraged. The inclusion of a
requirement that a need is "reasonable" will discourage
speculative claims. We endorse the proposed drafting. (Paragraph
42)
7. We agree that claimants
under the new category for dependency damages should be able to
claim for "non-business benefits" in the same way as
other claimants under section 1(3) of the Fatal Accidents act
1976. (Paragraph 44)
8. The bill is intended
to benefit people not organisations. We recommend the Ministry
of Justice replace "person" in clause 1(2) with "individual",
or include a definition of "person" in this context
elsewhere in the bill. (Paragraph 46)
9. We recognise that
the approach to new relationships in an assessment of dependency
damages is a very difficult area and fully appreciate the reaction
of claimants, fortunate enough to find a new partner, when the
damages they are awarded are reduced because of that relationship.
Awards of dependency damages are, however, focused on compensating
the claimant for actual financial loss and are not intended to
punish the defendant or to put a price on the death of the deceased.
(Paragraph 59)
10. We strongly oppose
the suggestion that all relationships, including those not involving
co-habitation, be considered in an assessment of dependency damages.
This would not only give rise to highly undesirable scrutiny of
the bereaved's personal life: it may result in lengthy and expensive
debate in court over the weight to be given to the quantifiable
benefits of even the most casual relationship, for example, the
occasional dinner. (Paragraph 60)
11. In the interests
of legal certainty we recommend it is made clear on the face of
the bill that the prospects of remarriage, a civil partnership
or co-habiting relationship of over two years are not to be taken
into account by a court when assessing dependency damages under
the Fatal Accidents Act 1976. (Paragraph 62)
12. We believe that
the courts should have discretion to take account of a parent's
new relationship when assessing a child's dependency damages as
this will allow it to consider the realities of the child's financial
loss. We reject the submission that the court's discretion in
this regard be limited by ruling out consideration of new relationships
or requiring them to be taken into account. Children have no control
over parental relationships and there is no obligation on a new
partner to support them, however, some will acquire a loving and
supportive carer. The wider discretion allows for a common sense
approach to ensure justice to the child and avoid the risk of
overcompensation. (Paragraph 67)
13. We note that the
Ministry of Justice accepted concerns that the new partner of
a surviving parent would have no legal obligation to support that
child. We ask the Government to note that a co-habitee in a "relevant
relationship" would also have no obligation to support his
or her partner. In our view, the reasoning behind this clause
is that a relevant new relationship of the surviving parent is
simply less likely to impact upon the financial loss of the child
than its parent and, in order to save court time and money, it
is right that a judge be able to discount it at the outset, rather
than go through a laborious process which ends in ascribing it
nil weight. We do not expect the courts to shrink from assessing
the impact of a new relationship at nil when assessing the damages
of the surviving partner, although the situation may be an unlikely
one, and, given the court has this discretion, we agree the judge
should be required to consider it. (Paragraph 68)
14. We agree with
the Government that equating an engagement to a remarriage in
an assessment for dependency damages should not form part of the
bill, as society has moved on and the inclusion of engagements
will almost certainly give rise to overly intrusive inquiries.
(Paragraph 69)
15. On the principle
that compensation should reimburse a claimant for actual losses
but that public policy is not served by an intrusive assessment
of the strength of a couple's relationship, we endorse the Ministry
of Justice's approach to relationship breakdown in an assessment
of dependency damages. Evidence of a reconciliation after an application
for a divorce petition can be taken into account by the court.
We note that separation between partners may be entirely due to
external factors, but it will be open to the claimant to rebut
the presumption that the partnership was in difficulty and we
would expect the courts to take a practical and common sense approach
to the evidence in such cases. (Paragraph 78)
16. Parliament has
a duty to provide clear, consistent legislation for the courts
to interpret and apply. The drafting of clauses 2 and 3 is not
clear. The clauses should be redrafted to state the general rule
that Parliament wants the courts to adopt as clearly as possible.
We regard this to be that neither the prospects of a new relationship,
nor of the breakdown of the relationship between the deceased
and the deceased's partner, should be taken into account in the
assessment of dependency damages. The clause should then state
the limited exceptions to the rule. (Paragraph 81)
17. Confusion over
bereavement damages undermines their purpose. We are pleased to
learn the Ministry of Justice intend to consider how the limited
purpose of bereavement damages can best be explained. It is our
view that the Minister should provide a clear explanation of the
function of bereavement damages to Parliament in the debate on
this bill. That would provide an authoritative basis for the courts,
and solicitors on which to advise a client who has questions about
the role of bereavement damages. We urge the Law Society to ensure
any such an explanation is brought to the attention of solicitors
in the field of personal injury and fatal accidents. (Paragraph
87)
18. We agree with
the Ministry of Justice's definition of bereavement damages as
far as it goes but we believe it to be incomplete and, in respect
of eligibility, unsatisfactory. We believe this is because the
Government has ignored the carefully worded conclusion of the
Law Commission that "the function of bereavement damages
is to compensate, in so far as a standardised award of money can,
grief, sorrow and the loss of the non-pecuniary benefits of the
deceased's care, guidance and society." We recommend the
Ministry reconsider its definition to bereavement damages, taking
into account the approach of the Law Commission. (Paragraph 89)
19. We endorse the
extension of eligibility for bereavement damages to co-habitees
of more than two years. This is a long overdue reform. We note
the Law Commission originally recommended this change in 1999.
While any qualifying period is necessarily arbitrary, we believe
the two year period, which is common in statute, is the most appropriate
solution. (Paragraph 97)
20. The Government
has rejected the recommendation of the Law Commission that eligibility
for bereavement damages should be extended to all parents who
lose a child as the result of another's negligence because it
would make too many parents eligible that were not close to their
children, requiring Parliament to legislate to allow them to be
cross-examined on their feelings of bereavement. We reject this
view. The death of a child at any age is a tragedy for the parents.
The function of bereavement damages is to acknowledge the grief
and loss that arises from a death caused by another's negligence.
In our view, it is better to "overcompensate" the very
small number of parents who do not feel profound bereavement on
the death of their child rather than deny the overwhelming majority
who have strong and enduring ties to their children this formal
recognition of their loss. We recommend that parents should be
eligible for bereavement damages regardless of the age of the
deceased child. (Paragraph 103)
21. Close ties of
love and affection do not cease or weaken when a child reaches
18, as witnessed by the large numbers of people who live with,
and care for, their elderly parents. This is not a legal argument.
The parent-child relationship is unique and is usually characterised
by lifelong support, love and guidance. We therefore recommend
that Parliament should recognise the on-going importance of that
relationship by extending eligibility for bereavement damages
to all children who lose a parent in circumstances where another
has negligently caused that death (Paragraph 107)
22. Losing a sibling
is a painful and distressing experience. The function of bereavement
damages is, however, to acknowledge the loss of those closest
to the deceased. The pre-eminent need to avoid intrusive inquiries
into the "level" or "quality" of bereavement
felt by the deceased's loved ones and the need for simple, straightforward
rules on eligibility mean that we have, reluctantly, concluded
that the unqualified exclusion of siblings from eligibility for
bereavement damages is justified (Paragraph 110)
23. We recommend
that the bill adopt a 'cap' on bereavement damages of three times
the full fixed sum to be shared equally between all eligible claimants.
This means that all the claimants in the same case will receive
the same amount of money. In our view unequal treatment of members
of a family in relation to the same death is undesirable. (Paragraph
117)
24. We believe concerns
over the "dilution" of an award are misplaced. Bereavement
damages are an acknowledgment of grief and loss. It is in the
public interest that those who are bereaved receive that recognition.
We believe the Government is focusing on the amount involved in
bereavement damages at the expense of their function and that
this misapprehension leads to a mistaken approach to eligibility
for bereavement damages. (Paragraph 118)
25. We note that our
recommendations on bereavement damages will extend the liability
of defendants. However, the Government must not lose sight of
the fact that bereavement damages are only available for wrongful
deaths, caused by another's negligence. The Government's current
assessment of those "closest to the deceased" is illogical
and suggests a rather negative view of the strength of family
relationships for the overwhelming majority of people in England
and Wales. (Paragraph 119)
26. We welcome the
Government's commitment to increase the fixed sum awarded as bereavement
damages in line with the Retail Prices Index. However, we believe
the update should occur on an annual basis. We see no reason why
a person bereaved in the third year of the cycle should effectively
be penalised because of the date of the death. An annual adjustment
would be the fairest solution and not administratively burdensome.
(Paragraph 121)
27. We note the concerns
over the imposition of a personal obligation to account for gratuitous
care on the claimant in a personal injury case. However, such
an obligation is preferable to the unwieldy "trust"
system currently in place which we do not believe operates in
the best interests of the claimant or carer. We therefore welcome
this proposal. (Paragraph 130)
28. The assessment
at trial of the claimant's future needs is inherently uncertain.
We would be reluctant to see the imposition of a personal obligation
to account that would fetter the injured party's ability to obtain
the most appropriate care. Although it would be regrettable for
a carer to be undercompensated it is better that the burden fall
on him or her rather than the claimant for whom the consequences
of being unable to access necessary treatment could be highly
damaging. We therefore find the argument that consistency is more
important that ensuring the claimant is able to fund the most
appropriate treatment unpersuasive. We welcome the Ministry of
Justice's undertaking to give further consideration to this proposal
and urge Ministers to consider the imposition of a lifelong obligation
carefully.
(Paragraph 131)
29. We acknowledge
the importance of the principle that the tortfeasor in a claim
for negligence should not benefit from his or her negligent or
wrongful act. However, we do not believe this is genuinely at
stake in this issue. An award for gratuitous care is not a windfall
for the person held liable for the injury but compensation for
his or her losses resulting from the decision to provide gratuitous
care to the victim. Parliament should encourage the provision
of care by the most appropriate person regardless of whether he
or she was found to have negligently caused the accident, for
example when a husband's careless driving causes serious injuries
to his wife. It is socially desirable and in the public interest
that the most appropriate person cares for the injured party,
for example a parent in the case of a child, thereby benefiting
claimants, defendants and society as a whole. In our view, the
Government's arguments in support of an award of damages for future
gratuitous care are as valid for past gratuitous care. We welcome
the Minister's undertaking to us that she will give this proposal
further consideration. (Paragraph 141)
30. We believe the
Government's view of an award of damages for gratuitous care is
overly legalistic and fails to recognise the practical realities.
It makes a fundamental difference to both victim and carer if
an insurance company is responsible for paying damages rather
than an individual defendant. In practical terms a defendant is
highly unlikely to appeal an award of damages for past gratuitous
care whereas an insurance company will seek to limit its liability.
A defendant who provides gratuitous care may well be in the same
household as the claimant who, while benefitting from the gratuitous
care, will be impoverished by any loss of earnings the defendant
has undergone. We urge the Government to take a realistic and
practical approach to this issue.(Paragraph 143)
31. We endorse the
Ministry of Justice's decision to allow claimants in a dependency
damages claim under the Fatal Accidents Act 1976 to recover damages
for gratuitous care that had been provided by the deceased. If
gratuitous services were provided by the deceased before his or
her death then it seems reasonable to expect that they would have
continued. (Paragraph 148)
32. We again reject
the proposal that only future care be recoverable where the past
care has been provided by the defendant. We acknowledge that a
negligent party should not in general benefit from his or her
wrongdoing but repeat that, not only is there no true benefit
to the tortfeasor in these circumstances, but also that Parliament
should do its utmost to encourage the provision of gratuitous
services by the most suitable person. (Paragraph 149)
Exemplary, aggravated, additional and restitutionary
damages
33. We
see some force in the argument that amending legislation simply
to 'tidy it up' is unwise and invites unintended consequences.
We appreciate that in the Government's view exemplary damages
should be confined to the common law. However, Ministers should
carry out a wider review on that issue before acting; replacing
'exemplary' with 'aggravated' damages in section 13(2) of the
Reserve and Auxiliary Forces (Protection of Civil Interests) Act
1951 simply confuses the different functions of these two awards.
(Paragraph 158)
34. We have not seen
evidence that the "additional damages" provisions applicable
to copyright infringement cases have caused any great difficulty
in the courts. In these circumstances we recommend that Ministers
consider whether it is necessary to introduce a change and whether
substituting 'aggravated damages and such amount by way of restitution'
is really an improvement. In any consideration of this clause
the Government should bear in mind that aggravated damages are
awarded for mental distress. Applying the formulation "aggravated
damages" therefore seems inappropriate to cases of copyright
infringement that are frequently brought by companies. (Paragraph
164)
Interest on pre-judgment and post-judgment debts
35. We
are surprised the Government has not made a decision on either
the rate of pre-judgment interest or the type of case to which
compound interest should be applied. We welcome, however, the
Government's commitment to consult on the secondary legislation
that will flow from this bill. If it is the prospect of claims
against the National Health Service which is delaying a decision
on interest, then other ways of dealing with this concern must
be found. (Paragraph 176)
Amending the Forfeiture Rule
36. We
welcome [the clause in the draft bill] as ending the current rule
which penalises the children or other heirs of a killer who are
themselves not only entirely innocent but are the people whom
the deceased would probably have wanted to benefit from the estate
in any event. We also welcome the proposal to ensure that minors
who inherit under this provision have their inheritance protected
(Paragraph 185)
37. We recommend the
Government re-examine the drafting of clauses 15 to 17 in the
light of the comments made by the Bar Council and the Law Society.
We expect all minors to receive suitable protection under the
bill. Equally, we share the Law Society's concern that nothing
be done to impair the validity of existing wills (Paragraph 186)
Barristers' disciplinary appeals
38. We
welcome the transfer of jurisdiction in appeals in disciplinary
hearings for barristers from the Visitors to the Inns of Court
to the High Court. This brings the disciplinary procedures into
line with solicitors. (Paragraph 189)
Enacting Law Commission proposals
39. We
endorse the Secretary of State for Justice's appreciation of the
work of the Law Commission. We believe the delay in legislating
on Law Commission recommendations is not only demoralising for
that organisation but leads to a waste of limited resources because
case law can change the legal context while recommendations await
implementation requiring further consideration of the proposed
changes. The last 10 years has seen a vast amount of criminal
justice legislation introduced by the Government. In contrast,
civil law measures have sometimes being neglected, to the public
detriment. We welcome the work done by Ministers to improve the
response time to Law Commission reports but urge the Government
to give prompt and appropriate consideration to enacting all
Law Commission recommendations. (Paragraph 194)
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