Memorandum submitted by Professor Andrew
Burrows FBA, QC
I should preface my detailed comments on Part
I of the Bill by saying how delighted I am that the Government
is taking forward the work of the Law Commission, which naturally
I regard as very important, in relation to Damages for Wrongful
Death and Gratuitous Care.
Any detailed criticisms that I here offer of the
drafting of the Bill should be taken in the light of my general
support for the Bill. My comments are intended to help improve
the Bill and to make it workable in practice.
1. Those entitled to claim dependency loss
(the list of dependants): clause 1
(a) The history of this section is that, time
and again, the list has had to be extended and at the Law Commission
we felt, supported by our consultees, that the time had come to
put the list on an entirely principled basis by adding a catch-all
residual category of those who suffer a dependency loss. Those
who are not included under the present law but would be correctly
included under this reform are eg (see para 3.16 of the Law Commission's
Report, Claims for Wrongful Death Law Com No 263):
(i) a financially dependent friend and companion
who lived with the deceased but not in a marriage-like relationship;
(ii) a child who is not the deceased's child
but was supported by the deceased while he or she was in a marriage-like
relationship (but was not married or in a civil partnership) with
the parent;
(iii) certain distant relatives supported by
the deceased (eg, a great-nephew supporting a great-aunt); and
(iv) a cohabitant, who was not married to the
deceased or a civil partner of the deceased, but who cannot satisfy
the two year rule.
(b) The Law Commission's definition of the residual
category was marginally wider than the Bill by including: "or
who would, but for the death, have been so maintained at a time
beginning after the death." That wider approach is in line
with principle (after all, those who fall within the existing
list can claim even though not yet suffering any dependency loss:
eg an unborn child in a marriage or a wife who is about to give
up work to have a family). I still think that that is the correct
approach. Although I understand that there may be a fear of uncertainty
and speculative claims, I do not think that in reality those would
be problems because the claimant would still have to satisfy the
normal standard of proving that he or she would have been dependent
on the deceased but for the death. The narrower wording of this
Bill would leave certain anomalies. So, eg:
(i) It would not cover the dependency loss of
a cohabitant who does not satisfy the two-year rule and is not
yet dependent on the deceased but was about to give up work at
the time of the death to have their child.
(ii) It would not cover the dependency loss of
a child en ventre de sa mere, who is not the deceased's child
but who would have been supported by the deceased while he was
in a marriage-like relationship with the parent.
(c) The Bar Council has made a valid point about
"immediately prior to the death" and have given the
example of the person who is injured in hospital and was therefore
not maintaining the claimant immediately prior to his death. This
would normally be covered by the Law Commission's wider wording
"or who would have been maintained but for the death".
But even then there might conceivably be a gap: to be sure of
filling it one would need to amend the wording to say something
like: "or who would, but for the death or the injury which
led to the death, have been so dependent."
(d) The Bar Council has made a valid point that
one would need to make clear, which the present Bill does not,
that bodies such as a cats' home, could not claim under this Bill.
The intention was always that only humans could claim. This could
be achieved by replacing the word "person" by "individual".
2. Effect of remarriage of dependant (or parent
of dependent child): clause 2
(a) The main purpose of this is to reform the
present section 3(3) of the Fatal Accidents Act 1976 whereby in
assessing a widow's damages her remarriage, or prospects of remarriage,
are to be ignored. The present law in section 3(3) can produce
absurd overcompensation: so a widow is still able to claim full
dependency loss unaffected by the fact that, since the death,
she has remarried a multimillionaire. The aim of the reform should
be to strike a balance between not overcompensating the widow
(and others) while not encouraging intrusive enquiries.
(b) The reform as drafted in this Bill is more
or less, but not quite, as the Law Commission envisaged. Subject
to one major point, I personally think that it is satisfactory.
The major point is that, unless I have overlooked something, a
clause has gone missing because there is nothing to put into effect
the Government's policy that the prospects of remarriage
or being maintained by someone else are to be ignored by the courts.
In other words, there is nothing equivalent to the Law Commission's
draft clause 3A(4) which read as follows;
"In assessing the damages payable to a dependant
under this Act, there shall not be taken into account the prospects
of the dependant, or a person whose circumstances are relevant
to the injury to the dependant—
(a)marrying or re-marrying or
(b)entering into a relevant relationship."
(The Law Commission then had an exception to
that to deal with where the dependant has become engaged but that
is no longer in play as the recommendations about engagement appear
not to have been accepted by the Government).
(c) The two points made by the Bar Council about
this clause (ie (i) taking into account two-year cohabitation
will encourage intrusive enquiries and (ii) child dependants should
not be caught by this) are in my view misconceived. They ignore
the fact that on both those aspects that is already the present
law and has not produced difficulties. In other words, in those
respects the Bill, in the context of reforming section 3(3), would
merely be clarifying what is already the present law.
3. Prospect that the dependant's marriage/relationship
with the deceased would have broken up: clauses 3 and 4
(a) Under the present law, section 3(4) of the
Fatal Accidents Act 1976 is opaque (court should take into account
that cohabitant if unmarried has no right to support) and the
Law Commission therefore recommended its repeal and replacement.
I am content with the Government's policy here which was very
similar, albeit not identical, to that of the Law Commission.
(b) But the drafting in the Bill does not achieve
this as clearly as it could. The courts might get to the correct
result by construing the Bill but the way in which the Bill is
drafted is a tortuous way of putting into effect the policy. It
should be drafted much more clearly. The basic policy that the
Bill is trying to effect is that, because of distressing enquiries,
one should not take into account that a dependant's marriage/relationship
might have broken up unless there is clear objective evidence
of that by for example a petitioning for divorce or factual separation.
But the drafting of the Bill is so difficult because:
(i) The drafting ought to start, but does not,
by laying down the general position that the courts should not
take into account the possibilities of marriage/relationship breakdown.
There would then be the specified exceptions to that.
(ii) There is a serious omission in that the
Bill does not apply the same approach (of ignoring prospects that
marriage/relationship would have been broken down) in respect
of dependency claims of others, especially children of the marriage
or relationship.
(c) For guidance as to how the Bill should be
drafted to achieve the Government's policy, reference should be
made to the Law Commission's draft Bill, appended to its Report
No 263. With some tweaking what the Law Commission had as clauses
3A(1) and (2) should be the correct model for the drafting.
4. Damages for bereavement: clause 5
(a) At present those who can claim "bereavement
damages" (a token sum for grief and other non-financial loss)
are very limited. The list is limited to the spouse or civil partner
of the deceased or the parents of an under-18 deceased child,
if legitimate, and the mother alone if illegitimate, provided
the child was unmarried and not in a civil partnership. The quantum
is also limited: the defendant can only be liable for (the fixed
sum which is at present) £11,800.
(b) The Government's policy is to extend the
list to some extent which then requires one to deal with the quantum
question. That policy constitutes a compromise between not extending
the list too far—after all this is a token sum for a form
of mental distress—and extending it sufficiently far that
one does not create injustices and anomalies. Although the Law
Commission would have gone further and had an approach of an overall
cap (of £30,000), I can understand the Government's position.
So this Bill would extend the right to bereavement damages to
the deceased's cohabitee and deceased's children if under 18 (and
unmarried and not in civil partnership). It would also extend
the entitlement to both parents, whether the deceased child was
legitimate or illegitimate, provided the child was under 18).
(c) As regards quantum, the Bill would mean
that where there is more than one spouse or civil partner or cohabitee,
the amount (at present £11,800) would be divided equally.
Where both parents claim, it would be split equally (ie £5,900).
As one could not have parents and spouses/partners all claiming
(because the parents' claims are inapplicable where the deceased
child was married or with a partner) the maximum amount awarded
to these claimants is £11,800. Children of the deceased would
have a fixed award of half ie, £5,900.
(d) The Law Commission would have extended the
list further to include any parent (whether deceased was under
18 or not), any child of the deceased (whether child was under
18 or not) and, more controversially I think, any brother or sister
of the deceased or a fiancé(e) (but not, eg, stepparents
or persons treated as parents). On quantum the Law Commission
recommended an overall pot of three times the award and if more
than three claimants, the award would be split equally. So for
any one death, each person entitled would get the same amount.
(e) My own view is that, while I can well understand
the government not wanting to go as far as the Law Commission
recommended, the list in the Bill is too narrow and should be
extended to:
(i) parents of the deceased whether under 18
or not; and
(ii) children of the deceased whether under 18
or not.
So if the deceased was aged 30 I think his 50-year-old
parents should be entitled to bereavement damages; and if the
deceased was aged 50, I think his 30-year-old child should be
entitled to bereavement damages. The present Bill would preclude
such awards.
As regards quantum, I would then revert to the
Law Commission's recommendation of an overall pot of three times
the award and, if there are more than three claimants, the pot
would be split equally. The beauty of this is that, contrary to
the present Bill, each person entitled would receive the same
amount of bereavement damages in respect of the same death (although
a different death, where there are fewer or more claimants, would
produce different amounts).
(f) The Law Commission recommended that the
amount to be awarded for bereavement damages should be index-linked
so as to keep it up-to-date. This recommendation has not been
accepted in the Bill which continues to use the present technique
of relying on occasional adjustment by Secretary of State. In
my view, index-linking, because automatic, would be preferable.
5. Damages for gratuitous care: clauses 7 and
8
(a) I have serious misgivings about these clauses,
which largely reverse the recommendations of the Law Commission
in our Report No 262, Damages for Personal Injury: Medical,
Nursing and Other Expenses. It is unclear to me what has happened
to produce such odd clauses.
(b) First, the Bill has included a legal obligation
(albeit, correctly, by means of a personal rather than a proprietary
right) to pay across to the carer damages for the future as well
as the past. As the Law Commission explained, this is not what
is wanted because it could leave the claimant undercompensated
where unexpectedly he or she has had to incur some commercial
costs of care. So, say, the claimant was awarded at trial damages
of £10,000 for future care which is assumed to be gratuitous.
There is then a change of circumstances so that the claimant incurs
£10,000 of commercial care. According to the Bill the claimant
would not be able to use the £10,000 to pay for the commercial
care and would still have to compensate the gratuitous carer from
the damages. As between undercompensating the claimant and undercompensating
the gratuitous carer, it is obvious that it is not the claimant
who should be undercompensated.
(c) Secondly and bizarrely the Bill has clause
7(4) (and parallel provision in clause 8) that undermines the
Law Commission's recommended reform of Hunt v Severs [1994]
2 AC 350 which at present precludes damages for gratuitous care
where the carer is the tortfeasor. As explained by the Law Commission
at paragraphs 3.67-3.76, and supported by an overwhelming majority
of consultees, that decision should be reversed by legislation
(ie the logic of the common law should be overturned) because,
for example, it discourages the appropriate person from caring
and encourages the claimant to have commercial care; and it encourages
sham legal contracts with gratuitous carers so that they can then
claim damages because the care is then not gratuitous. There is
also the point that the damages are in reality to be paid by insurers.
(d) The simplest way to put that Bill right
would be to delete 7(2)(b) and 7(4) and the analogous proposed
provisions in clause 8 inserting into the Fatal Accidents Act
the new section 3A2(b) and 3A2(4).
(e) There are two other sloppy aspects of the
drafting that need correction. The first is that to stop, eg,
the NHS or local authorities claiming under this provision, one
needs to replace "person" by "individual"
providing the services. Secondly, the meaning of services being
provided gratuitously in clause 7(5)(c) is circular: one could
probably deal with this by replacing "legally enforceable"
by "contractual right".
6. Aggravated damages and restitutionary awards:
clause 9
(a) This is the other clause about which I have
serious misgivings. Leaving aside that it does not implement anything
recommended by the Law Commission, this clause would make the
present law worse not better.
(b) "Aggravated damages" are a type
of damages that people find confusing. They are regarded as compensating
for mental distress but in situations where the defendant's conduct
has been particularly reprehensible. They therefore have overtones
of punitive damages and yet are ultimately compensatory. The Law
Commission in its Report, Aggravated, Exemplary and Restitutionary
Damages, Report No 247 recommended at paragraph 2.42 that
wherever possible the label "mental distress damages"
should be used instead of the misleading phrase "aggravated
damages".
To use this phrase in legislation is therefore
a backward step.
(c) The Law Commission in line with the majority
of its consultees favoured retaining exemplary (ie punitive) damages.
Contrary to clause 9(1), there is nothing to be gained by abolishing
the only statutory reference to exemplary damages in section 13(2)
of the Reserve and Auxiliary Forces (Protection of Civil) Interests
Act 1951. That subsection is of little practical importance. Even
worse would be to replace exemplary damages by aggravated damages
for the reasons given above.
(d) The idea of "additional damages"
has long been a source of confusion in the law on intellectual
property rights. But if one does not like to say that "additional
damages" here means "exemplary" damages, additional
damages should simply be abolished. Replacing them by "aggravated
damages or restitution" would not improve the law because
restitution can already be awarded through an account of profits
as an alternative to damages; and aggravated damages are, for
the reasons given above, confusing.
(e) There are identical provisions on "additional
damages" that are not mentioned in clause 7: eg section 191J(2)
and section 229(3) of the Copyright, Designs and Patents Act 1988.
I presume that it is simply an oversight that these identical
provisions have not been covered.
(f) The problem of aggravated damages not being
awardable to a company, because a company cannot experience mental
distress, is a general defect of aggravated damages throughout
the many areas of the common law where such damages are available.
It would be very odd and potentially dangerous for the development
of the common law, if one were simply to reform that position
in the narrow context of intellectual property rights as clauses
7(2) and (3) here do. Indeed the very case in which the issue
was raised, Collins Stewart Ltd v Financial Times Ltd [2005]
EWHC 262, was not an intellectual property case but a libel case
so that this reform would leave a judge with exactly the same
problem in a libel case as the judge faced in that case.
I should conclude by saying that the Law Commission
gave a great deal of thought to the reforms they recommended.
The Government is of course free to accept or amend or reject
those recommendations. But in relation to clauses 7-9 of this
Bill, the impression given is that the issues have not been thought
through with the attention to detail required and do a disservice
to the pain-staking work and extensive consultation carried out
by the Law Commission (at public expense).
9 February 2010
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