Response by the Association of Personal
Injury Lawyers to the Ministry of Justice's Civil Law Reform Bill
Consultation Paper
The Association of Personal Injury Lawyers (APIL)
is a not-for-profit organisation whose members help injured people
to gain the access to justice they deserve. Our members are mostly
solicitors, who are all committed to serving the needs of people
injured through the negligence of others. The association is dedicated
to campaigning for improvements in the law to enable injured people
to gain full access to justice, and promote their interests in
all relevant political issues.
The aims of the Association of Personal Injury
Lawyers are:
— To promote full and just compensation
for all types of personal injury.
— To promote and develop expertise in the
practice of personal injury law.
— To promote wider redress for personal
injury in the legal system.
— To campaign for improvements in personal
injury law.
— To promote safety and alert the public
to hazards wherever they arise.
— To provide a communication network for
members.
APIL's executive committee would like to acknowledge
the assistance of the following members in preparing this response:
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| Muiris Lyons | APIL Vice President.
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| Stephen Lawson | APIL Secretary.
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| Allan Gore | APIL past President.
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| Karl Tonks | APIL Executive Committee Member.
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| Mark Turnbull | APIL Executive Committee Member.
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Any enquiries in respect of this response should be addressed,
in the first instance, to:
APIL, 11 Castle Quay, Nottingham NG7 1FW.
INTRODUCTION
We welcome the opportunity to respond to this consultation,
having responded to the Government's original consultation "The
Law on Damages" in July 2007. Due to APIL's remit of
campaigning on behalf of injured people, we will only be commenting
on part one of the draft Bill.
There are some aspects of the draft Bill that we welcome.
We are, however, extremely disappointed that some Law Commission
recommendations have been ignored. In the foreword to the Bill,
Bridget Prentice states that "several of the reforms proposed
derive from or implement recommendations of the Law Commission.
I am very grateful to the Law Commission for its work in keeping
the civil la w up to date". Despite these comments, there
are a number of recommendations that the Law Com mission has made
in recent years that are not addressed in this Bill. The fact
that these recommendations have not been included is a failure
to keep the law up to date, which will have a detrimental impact
on injured people. We urge the Government to bring forward a further
Bill to enable other Law Commission recommendations to be enacted
in the very near future.
GENERAL COMMENTS
The most fundamental omission relates to the Law Commission's
recommendations in relation to damages for non-pecuniary loss,
which were not discussed in the Government's "Law on Damages"
consultation in 2007. The fact that there is nothing in the draft
Bill to address these recommendations represents a missed opportunity
to make a much needed update to this area of law. The Court of
Appeal failed to implement the recommendations in full and we
had hoped that the Government would reflect on the Commission's
view that the recommended increases should now be implemented
through legislation, and bring forward measures in this Bill to
do so.
In Law Commission report 257—Damages for Non- Pecuniary
Loss, published in 1999, it was recommended that damages for
non-pecuniary loss should be increased by at least one and a half
times (for damages above £3,000) and that, for damages valued
between £2,001 and £3,000, that they should be
subject to a series of tapered increases of less than one and
half times. The Law Commission also stated:
"we recommend that, if the minimum increase recommended
by us….is not achieved by the judiciary with in a reasonable
period (say three years from the date of publication of this report),
it should be implemented by legislative enactment". [6]
By its decision in Heil v Rankin the Court of Appeal
failed to implement the minimum recommendation. The Court did,
however, acknowledge the following:
"the level of awards does involve questions of social
policy…Parliament remains sovereign. It can still intervene
after the Court has given its decision. The task would be a novel
one for Parliament. However, Parliaments' intervention in this
instance would not necessarily result in a loss of flexibility
or interfere with the ability of the court to craft an award to
the individual facts of a case, which is a virtue of the present
system. The Commission has provided a draft Bill in their report
in case it is necessary to legislate. The terms of the proposed
Bill would avoid the undesirable consequence of lack of flexibility.
If legislation based on the proposed Bill were to be passed, the
legislation could also, by statutory provision, avoid the retrospective
effect of an intervention by a court." [7]
Victims of negligence are poorly served by the failure here
to review the Law Commission's own draft Bill, and we submit that
this issue should be addressed without further delay.
CLAUSE 1—EXTENSION
OF RIGHT
OF ACTION
We welcome new subsection (h) in clause 1, which will give
more people the right to make a claim when someone who is maintaining
them is killed. We have concerns, however, about the current wording
of new subsection (7), which gives a definition of "maintenance",
something that is not currently in the Fatal Accidents Act 1976.
We suggest amending new subsection (7) to read:
"(7) For the purposes of this A ct, a person (A )
is maintained by another person (B) if B, otherwise than for full
valuable consideration, makes a substantial contribution in money
or money's worth towards A."
We believe that the definition of "maintained"
in the current wording of subsection (7) could lead to satellite
litigation as to what constitutes "reasonable needs".
Our proposed amendment would remove reference to this and would,
therefore, also reduce the risk of satellite litigation.
There is currently no mention of "reasonable needs"
in subsections (a) to (g) of section 1 (3) in the Fatal Accidents
Act. We consider that the law should treat all classes of claimants
equally and that it is inequitable to require one group of claimants
to satisfy a higher threshold. claimants under subsection (h)
should be treated in the same way as claimants under subsections
(a) to (g).
We are also concerned that the term "reasonable needs"
could lead to some people becoming "second class" claimants,
being maintained by the deceased at the time of death, but the
support being given by the deceased not amounting to what could
be considered as a "reasonable need". A child who is
attending university and receiving additional financial support
from his uncle, for example, should be entitled to make a claim
under the Fatal Accidents Act, as he will suffer financially due
to the death.
Under the current wording of the Bill, however, such financial
support may not be considered as a "reasonable need"
and therefore he may not be able to bring a claim .
In the consultation paper the Government quite properly states
that subsection (4) in clause 3 of the Fatal Accidents Act
has been criticised for its "intrusive nature", and
is therefore to be repealed. It would therefore appear to be inconsistent
for the Government to introduce a new subsection (7) here, which
could lead to intrusive investigations regarding the financial
arrangements of the deceased in order to establish who may have
received financial assistance from him. We suggest the Government
should avoid the need for intrusive investigations in this area.
CLAUSE 2—ASSESSMENT
OF DAMAGES:
EFFECT OF
REMARRIAGE ETC
We recommend that clause 2 of the draft Bill should
be 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 passed to 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 and right that the person
who is negligent in causing injury or death should pay the compensation.
We have consistently argued that the obligation to financially
support the bereaved spouse or civil partner should remain with
the tortfeasor, and not passed onto a new spouse or partner.
It is vitally important that the partner or spouse of someone
killed through negligence is able to move on, and start rebuilding
his or her life as quickly as possible. The fact that new subsection
(3B) defines a relevant relationship as having lasted longer than
two years could lead to defendants delaying proceedings, in the
hope that the bereaved may have entered into a new relationship.
The Government should not be proposing legislation that could
prevent bereaved partners from moving on with their lives after
the loss of a loved one.
The clause as currently worded may also lead to new partners
not contributing to the maintenance of bereaved family members,
so as not to invoke this clause.
We are opposed to any demand for a two year period to be
satisfied before claimants are able to bring a claim under the
Fatal Accidents Act, as referred to in several places within the
consultation. We feel it is inappropriate to have arbitrary time
frames imposed in these situations, and that every case should
be judged on the individual circum stances. It is also inappropriate
that references to a two year period are included in the draft
Bill when they have not been included in the Government's 2007 consultation
paper.
We believe that a spouse who met and married the deceased
within a matter of months should not be in a better position than
someone who has cohabited with the deceased for one year and 364 days
prior to the death. There may also be cases where a partner has
been demonstrated to be financially dependant on the deceased
for a number of years, but had never lived with the deceased,
for a variety of possible personal reasons. These people would
also be in a worse position under clause two as currently worded.
When considering relationships for the purposes of benefit
calculation, the state does not require a relationship to have
lasted longer than two years. It is inconsistent, therefore, to
insist on such a time limit being satisfied in this context.
CLAUSE 3—ASSESSMENT
OF DAMAGES:
POSSIBILITY OF
RELATIONSHIP BREAKDOWN
We submit that subsection (b) of new clause 3D should be
omitted from the Bill.
We do not agree that the courts 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 m any 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. There
may also be cases where two people have lived together for sometime,
but have decided to continue their relationship, whilst not living
together.
It would also be quite wrong to view a separation, which
could be extremely brief, as a "trigger" for the breakdown
of a relationship, when brief separations are far from uncommon
in generally successful, long-term partnerships. This would also
encourage unnecessary intrusion by defendants into the private
lives of the deceased and their partners. The Government has stated
in its response that it is opposed to intrusive investigation
in some areas of this legislation, but could leave bereaved partners
open to such investigations under this clause. This approach,
of potentially leaving the personal arrangements of the deceased
open to investigation is, therefore, at best, inconsistent.
CLAUSE 4—ASSESSMENT
OF DAMAGES:
EFFECT OF
LACK OF
RIGHT TO
FINANCIAL SUPPORT
We agree that subsection 4 in section 3 of the
Fatal Accidents Act should be repealed, a step first suggested
by the Law Commission in its paper 263 in 1999. In our original
submission to the Government we said that it should be replaced
"by a provision to the effect that the prospect of breakdown
in the relationship between the deceased and his or her partner
should not be taken into account when assessing damages".
We are pleased that the Government is seeking to repeal this subsection,
but we are disappointed that it has not been replaced by a new
provision along the lines suggested above.
CLAUSE 5—DAMAGES
FOR BEREAVEMENT
Although we recognise the Government has brought forward
proposals to extend the list of people who are able to make a
claim for bereavement damages under the Fatal Accidents Act, we
believe the proposed extension does not go far enough. We therefore
suggest that current subsection (2) (b) of clause 1A in the Fatal
Accidents Act should be removed, and the following amendment to
current subsection (ab), and three new subsections in clause 5 (2):
"(ab) of a parent of the deceased;
(ac) of a 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;
(ad) of a sibling of the deceased; and
(ae) of a person who was engaged to the deceased at the time
of death".
We believe that parents should be entitled to claim bereavement
damages regardless of the age of the child when the child dies.
Society views it as an unnatural sequence of events for a parent
to endure the loss of a child as, in the natural order of things,
parents should pre-decease their children. This is, surely, only
com pounded in cases where a child has been killed through negligence.
It is, surely, both 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 very close and if one were to die
due to negligence, the grief would be enormous. It is right and
just, therefore, that they should be compensated for their loss.
We agree entirely with the Law Commission's recommendation
that it would be inconsistent to treat engaged couples in a different
way from cohabiting couples. We believe it is highly unlikely
that an engaged couple would not be able to provide evidence of
the engagement in a variety of ways, including, for example, the
wearing of a ring, witness statements, or evidence of an appointment
with a registrar. The loss of a parent will obviously be keenly
felt by a child, regardless of age. The closeness of the relationship
and nature of emotional dependency will, however, be much greater
for children living with their parents at the time of death, com
pared to a child who lives away from home. It is right, therefore,
that children living with their parents at the time of death should
be entitled to make a claim.
When considering bereavement damages, we advocate learning
from the Damages (Scotland) Act 1976, which has been effective
in dealing with bereavement damages (or "loss of society"
in Scotland) for m ore than 30 years.
Under the terms of the Act,[8]
those relatives entitled to bereavement damages are:
— Any person who immediately before the deceased's death
was the spouse or civil partner of the deceased or in a relationship
which had the characteristics of the relationship between civil
partners.
— Any person, not being the spouse of the deceased,
who was, immediately before the deceased's death, living with
the deceased as husband or wife.
— Any person who was a parent or child of the deceased.
— Any person not a parent or child of the deceased who
was accepted by the deceased as a child of his family.
— Any person not a parent or child of the deceased who
accepted the deceased as a child of his family.
— Any person who was the brother or sister of the deceased;
or was brought up in the same household as the deceased and who
was accepted as a child of the family in which the deceased was
a child.
— Any person who was a grandparent or grandchild of
the deceased.
Clearly, there is no difficulty here in recognising the closeness
between parents, children of all ages, grandparents, siblings
and other people living with the deceased as part of the family.
And we submit that the law in England and Wales should offer the
bereaved in this jurisdiction no less com fort than their Scottish
counterparts.
We also submit that the system of awarding bereavement damages
through the courts, as happens in Scotland, is fairer to relatives.
It is still accepted that any award made is simply a token, but
the token offered is usually higher than the sum currently presented
to the bereaved in England and Wales. This system relies on legal
precedent and a proper examination of the closeness of the bereaved
to the deceased, to ensure that any payments are fair, and we
see no reason why this system cannot be introduced in this jurisdiction.
Because the sums involved are still relatively low, cases are
usually settled without going to court and so would not represent
a major burden for the system.
CLAUSE 6—MINOR
AMENDMENT
We do not agree that this is a minor amendment. It is wrong,
for the reasons stated above, for two people to have lived together
for two years before they can be defined as a dependant.
We believe that clause 6 should be removed from the
draft Bill, and that subsection (b) (ii) of clause 1 (3)
in the Fatal Accidents Act should be repealed, as it contains
references to a two year period having to pass before someone
is classed as a dependant. We object to any reference to a two
year period, for the reasons detailed above.
CLAUSE 7—DAMAGES
FOR GRATUITOUS
SERVICE
CLAUSE 8—AWARDS
OF DAMAGES
UNDER THE
FATAL ACCIDENTS
ACT 1976
Due to the similarities between clause 7 and 8, we will
be commenting on the two clauses together. We submit that subsections
(2), (4) and (5) of clause 7 in the draft Bill should removed,
and the new clause 7 should read:
(1) Subsection (2) applies if, on a claim for damages for
personal injury, a court is considering awarding damages to the
injured person in respect of a gratuitous provision of services
to that person.
(2) A court must not refuse to award damages in respect of
a gratuitous provision of services merely because the person providing
the services is the defendant.
In clause 8, we submit that subsections (2), (4), (5) and
(6) should be omitted from the draft Bill. Clause 8 would,
therefore, read:
(1) The Fatal Accidents Act 1976 is am ended as follows.
(2) After section 3 insert—
"3A Damages for gratuitous services provided by the
deceased
(1)Subsection (2) applies if, on a claim for damages for loss
of dependency, a court awards damages to one or more dependants
in respect of gratuitous provision of services to that person
by the deceased.
(2)In assessing the loss to a dependant of the deceased gratuitously
providing services to the dependant which the deceased would have
provided but for the death, the court must not refuse to award
damages merely because the person providing the services is the
defendant."
The Government's stated intentions were partial abolition
of the rule in Hunt v Severs and the recognition of a personal
obligation for the claimant receiver of compensation to account
to the care provider. A less formal, simpler procedure than that
currently imposed by Hunt v Severs, which requires funds
to be held in a formal trust for the carer, was envisaged. This
Draconian draft measure, however, goes much further than was ever
suggested in the Government's consultation and attempts to implement
the opposite of what was intended. Paragraph 14C of the Civil
Law Reform Bill consultation paper states (our emphasis in bold):
"The Law Commission agreed that damages should be
recoverable for gratuitous care for the benefit of the carer (including
where the care is provided by the defendant), but considered that
the trust approach in Hunt v Severs was not the best mechanism
for achieving this. It recommended instead that the claimant should
be under a personal obligation to account for the money to the
carer. This would involve less formality and be simpler
for the claimant. The Commission also recommended that
the obligation should relate only to past care. Claimants
should not be under a legal (as distinct from moral) duty to hand
over any damages for future gratuitous care. This was
principally on the basis that the future is uncertain and that
different care arrangements might become appropriate…"
This followed the Government's response to the Law on Damages
consultation, which stated, in relation to gratuitous care, "a
legal obligation would be too rigid, and that a personal obligation
would give greater flexibility." A statute which introduces
a personal obligation to account into legislation, makes it a
legal obligation.
The consultation paper echoes the Law Commission's recommendations.
In relation to the Commission's view that a personal obligation
on the claimant to account for the money to the carer is preferable
to the current approach of holding damages in trust, the paper
indicated that, while assessing future need is inherently uncertain,
a personal obligation to account to the carer should also apply
to future gratuitous services actually provided.
Our suggested amendment offers a partial reversion of Hunt
v Severs which allows the claimant who has relied on gratuitous
care in the past, even from the tortfeasor, to claim damages for
that. This is then consistent with the current law that allows
damages to be assessed at the full market rate (less discount
for gratuitous care) of the cost of care in the future, because
the claimant may not want to continue to rely on gratuitous care,
especially where, for example, the carer has been the spouse.
The claimant is entitled to choose that the care provider revert
to a normal role as spouse or family member rather than to become
a permanent carer.
If a legal obligation to account is created, the law then
encourages defendants to continue to investigate the case after
settlement or trial (to make sure that the claimant has accounted
to the carer). This is an unwarranted intrusion by the defendant
into the private affairs of the claimant, after the claim has
been concluded. Such an intrusion is inconsistent with the Government's
approach in other areas of the draft Bill, as mentioned elsewhere
in this response. It also imposes rigid requirements on the claimant,
rather than leaving the account to the discretion of either or
both the claimant and the carer (who for a variety of reasons
may not want to enforce the personal obligation of the claimant).
When the money claim ed is for the cost of care, if the claimant
were to be forced to hand the money to the carer in a lump sum
, this could affect any means-tested benefits which the carer
may have. This would be an unintended consequence of being forced
to act in that way by this obligation to account.
If the claimant does not recover the full value of the claim,
the carer may acknowledge that the award does not fully cover
the claimant's needs. The carer may, therefore, not want to take
the money, preferring it to be kept "in the pot" for
the benefit of the claimant. This selfless personal decision could
not be adopted if a rigid requirement to account were to be introduced
by statute.
While a statutory legal obligation may seem like a neat solution,
we are concerned that intrusive enquiries could be made of the
claimant, and of the receiver of the sum s claim ed (the carer).
It is generally accepted that the defendant is never allowed to
demand proof that any aspect of future loss is spent exactly how
it was claimed, as people and circum stances change.
Impact assessment
We are unable to provide detailed comments on the specific
figures included in the impact assessment. It is a real concern,
however, that, by discussion of the potential cost to the defendant,
the impact assessment appears to aim to be "fair" to
both sides. This must not supersede discussion of what is "full"
compensation to the victim, especially when what can be considered
"fair" is, of course, highly subjective.
In pursuing the principle of fair and full compensation,
it is, surely, fairness and logic which dictates that the needs
of the claimant must com e first. Any concern about balancing
the interests of claimants with the cost to defendants and their
insurers flies in the face of the principle of "polluter
pays" which governs our civil system.
It is settled law that in awarding damages, the financial
consequences to the tortfeasor are not relevant. In Heil v
Rankin[9] Lord Woolf
M R (as he then was) stated:
"33. We are well aware that in making a decision
in a particular case as to what the damage should be, the Court
must not be influenced by the means of a particular Defendant.
As Mr O'Brien submitted for the Defendants in making an award
the Court is not concerned with whether the claimant is a pauper
or a millionaire. The award for the same injuries should be the
same irrespective of the Defendant's means. This is clear from
the authorities. In Wells v Wells [1998] 3 All ER
481 at 492, [1999] 1 AC 345 at 373 Lord Lloyd
of Berwick, quoting from Lord Scarman in Lim Poh Choo v Camden
& Islington Area Health Authority [1979] 2 All ER
910 at 917-918, [1980] AC 174 at 187 said:
'There is no room here for considering the consequences
of a high award upon the wrongdoer or those who finance him. And,
if there were room for any such consideration, upon what principle,
or by what criterion, is the Judge to determine the extent to
which he is to diminish upon this ground the compensation payable'".
Lord Hutton also confirmed this principle in Wells v Wells
when he stated:[10]
"The consequence of the present judgments of this House
will be a very substantial rise in the level of awards to Plaintiffs
who, by reason of the negligence of others sustained very grave
injuries requiring nursing care in future years and causing a
loss of future earning capacity, and there will be resultant increases
in insurance premiums. But under the present principles of law
governing the assessment of damages which provides that injured
persons should receive full compensation Plaintiffs are entitled
to such increased awards."
In Parkinson v St James and Seacroft University Hospital
NHS Trust[11] Hale
LJ (as she then was) said:
"[56] The right to bodily integrity is the first
and most important of the interests protected by the law of tort,
listed in Clerk & Lindsell on Torts, 18th ed (2000),
para 1-25. 'The fundamental principle, plain and incontestable,
is that every person's body is inviolate': see Collin s v Wilcock
[1984] 1 WLR 1172, 1177. Included within that right are two
others. One is the right to physical autonomy: to make one's own
choices about what will happen to one's own body. Another is the
right not to be subjected to bodily injury or harm. These interests
are regarded as so important that redress is given against both
intentional and negligent interference with them."
We see no reason to act against the principles outlined above
by factoring into consideration any need to balance the interests
of claimants and those of defendants and their insurers.
February 2010
6
Damages for Non-Pecuniary Loss, LC 257, Part V Summary
of Recommendations, paragraph 5.13. Back
7
Judgment, paragraph 41. Back
8
Damages (Scotland) Act 1976, Schedule 1. Back
9
[2000] 2 WLR 1173, [2000] 3 All ER 13.8 Back
10
[1999] 1 AC 345 at 405 (D-F). Back
11
[2002] QB 266 at 284. Back
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