Response by Irwin Mitchell to the Ministry
of Justice consultation paper on the Civil Law Reform Bill
CLAUSE 1—EXTENSION
OF RIGHT
OF ACTION
We welcome the new extension in subsection (h)
in clause 1, which will give more people the right to make a claim
when someone who is maintaining them is killed. However, the current
wording of new subsection (7) which gives a definition of maintenance
is something which is not currently in the Fatal Accidents Act
1976. We suggest amending the new subsection to read:
"For the purpose of this Act the person
(A) is maintained by another person (B) if B otherwise and for
full valuable consideration makes a substantial contribution in
money or monies worth towards A."
We are concerned that the use of the expression
"reasonable needs" in the current wording may lead to
satellite litigation. The definition of this may prove controversial.
CLAUSE 2—ASSESSMENT
OF DAMAGES
(EFFECTIVE REMARRIAGE
ETC.)
We propose that clause 2 of the draft bill
is removed in order to ensure that the obligation for financially
supporting the bereaved spouse or civil partner should continue
to be placed on the tortfeasor, rather than pass the new spouse
or partner. The principle that the "polluter pays" governs
our civil justice system, and we would oppose anything that seeks
to change that. It is just that the person who is negligent in
causing the injury or death should pay the compensation.
We are also concerned that the parties may adjust
their behaviour so as to avoid invoking this new clause, for example,
defendants delaying in the hope that the claimant will find a
new partner.
We do not accept that there is a need to have
a two year period that has to be satisfied before a claimant can
bring a claim under the Fatal Accidents Act 1976. This is referred
to in a number of a places within the consultation. We consider
that every case should be judged on individual circumstances.
Introducing the two year period leads to arbitrary results. We
propose that subsection (b) in new clause 3 D should be omitted
from the bill. We do not agree that the Court should take into
account the fact that the couple are no longer living together
at the date of death as evidence that the marriage or partnership
has irretrievably broken down. There are many reasons why a couple
may not be living together, such as when one partner is working
away from home for a significant length of time or when one partner
is in hospital or in full-time care away from the home.
The Government has stated in its response that
it is opposed to intrusive investigation in some areas of this
legislation. However, this clause could leave bereaved partners
open to such investigation.
CLAUSE 5—DAMAGES
FOR BEREAVEMENT
We note the proposed extension for people to
recover damages for bereavement. However we do not consider that
this extension goes far enough. We should suggest that the amendments
of the current subsection should ensure that the following are
covered:
— The parents of the deceased
— The child of the deceased who was aged
under 18 at the date of death, or was living with the deceased
at the time of death
— A sibling of the deceased
— A person who was engaged to the deceased
at the time of death
We consider that parents should be entitled
to claim bereavement damages regardless of the age of the child
when the child dies. It seems to us that it is distasteful and
impossible to argue that a child over the age of 18 is any
less of a loss than a younger child.
Ties between siblings are close which is why
we consider that they should be included as well.
We consider that engaged couples should be treated
in the same way as cohabiting couples. If a couple were engaged
that is likely to be inevitably proof enough that there is a closeness
that justifies payment in these circumstances.
The loss of a parent will obviously be keenly
felt be a child regardless of age and accordingly, it is justified
for children to be included as well. Reference is also made to
the damages (Scotland) at 1976 which includes an entitlement
to bereavement in damages for relatives of the description referred
to above.
CLAUSE 6—MINOR
AMENDMENT
We are concerned that this amendment may have
some implications. We do not consider for the reasons already
stated that two people have to live together for two years before
they can be designed as dependants. Clause 6 should be removed
from the draft bill and that subsection (b) (ii) of clause 1 (3)
in the Fatal Accidents Act 1976 should be repealed. This
contains references to a two year period having the pass having
to pass before someone is classed as a dependant.
IMPACT ASSESSMENT
We are unable to provide detailed comments on
the specific figures included in the impact assessment. However
it is a real concern that discussion of the potential cost to
the defendant the impact assessment appears to be trying to achieve
"fairness" to both sides. It is important that this
does not supersede what is "full" compensation for up
victims. It has of course been established for many many years
that an injured person is entitled to compensation that puts them
in the position they would have been had they not sustained any
injuries.. There are many authorities that support this principle
particular reference is made to the House of Lords decision in
Wells—v—Wells in 1999. We sincerely hope that
this important principle has been paramount in consideration of
the various amendments to the legislation.
CLAUSE 7—DAMAGES
FOR GRATUITOUS
SERVICES
It is noted that a claimant can now recover
damages for gratuitous services if those gratuitous services are
provided by the defendant. However, it is unclear why as set out
in clause 7 (4) that these damages cannot be recovered for
the period prior to the date of the award. Such an approach seems
arbitrary.
CLAUSE 8—AWARDS
OF DAMAGES
UNDER THE
FATAL ACCIDENTS
ACT 1976
This clause would allow the claimant to recover
damages for gratuitous services provided by the defendant. Again,
it is difficult to see why this only arises for damages after
the award rather than before which seems arbitrary.
| 
