A Private Members Bill which seeks to bring greater fairness to bereaved families and secondary victims will have its’ Second Reading in Parliament on 4th December 2015

Amidst a political landscape which threatens to deprive the injured and most vulnerable of access to justice, the introduction of Andy McDonald MP’s Negligence and Damages Bill is welcomed.

The Private Members Bill was introduced in October 2015 and is the product of a longstanding campaign by the Association of Personal Injury Lawyers (APIL) to bring greater justice to bereaved families and secondary victims of harm.

The Bill has three key aims. Firstly, it seeks to widen the class of persons that are entitled to bring a claim when somebody dies as a result of negligence.

Secondly, it seeks to increase the fixed statutory award known as ‘bereavement damages’ payable in such circumstances and iron out the grave inconsistencies which currently exist between the Scottish regime and the one we have in England and Wales.

Finally, the Bill seeks to extend the restrictive common law approach to secondary victim claims.

Current Law

Under the Fatal Accidents Act 1976, you are only entitled to claim bereavement damages if the deceased person was your spouse, civil partner, or your child aged under 18 years.

In the case of unmarried parents, only the child’s mother is entitled to claim. This means that you will be barred from claiming the award in respect of a deceased parent or a long-term partner, simply because you were not married to them.

In contrast, you may bring a similar claim in Scotland under the Damages (Scotland) Act 2011 if you are a member of the deceased’s ‘immediate family’. This definition includes spouses, co-habitees, parents, children, siblings, grandparents and grandchildren.

The level of bereavement damages currently payable in England and Wales is fixed at £12,980 for deaths occurring on or after 1 April 2013. Again this is in rather stark contrast to the Scottish system where there is no such cap imposed and judges have discretion to award what they consider is fair on a case by case basis.

Accordingly, bereaved families north of the border tend to receive significantly higher awards.

The law in England & Wales is also currently very restrictive in cases involving secondary victims - those who suffer psychiatric harm as a direct consequence of witnessing the death, injury or threat of injury to another.

In such cases, not only must you prove that you have a recognised psychiatric illness such as Post Traumatic Stress Disorder, you must also prove a ‘close tie of love and affection’ to the injured person and that you have witnessed a ‘sudden and shocking’ event.

You are only assumed to have that close tie if you are the parent, child or spouse of the injured person and with any other relationship, the burden is on the person bringing the claim to prove the tie.

A ‘sudden and shocking event’ would not include, for example, visiting a loved one in hospital and seeing them badly injured after having received negligent treatment.

This is because the visiting relative is assumed to have prepared themselves to see something upsetting, with the prior knowledge that something has gone wrong.

Proposed Reforms

The Negligence and Damages Bill, if passed by Parliament, will repeal the provisions currently contained in the Fatal Accidents Act 1976 in respect of bereavement damages.

It will make English and Welsh law reflective of the current Scottish regime and allow a far wider class of bereaved family members to bring a claim for damages.

In addition, the current cap will be lifted and judges will have the flexibility to make awards at levels they see fit.

As to secondary victim claims, the categories of relationship with an assumed ‘close tie of love and affection’ will be widened to include current and former spouses and civil partners, parents and children, fiancés, siblings, cohabitees and partners, grandparents and grandchildren, aunts and uncles, nieces, nephews, colleagues, friends and persons brought up in the same household or considered as children of the family.

In addition, the requirement to prove that you have witnessed a ‘sudden and shocking event’ will be usurped by the Bill, so you may be able to claim as a secondary victim if, for example, you have witnessed the death of a loved one over an extended period of time.

Opinion

There is a need to bring the current law in line with modern attitudes and trends in relation to family life and relationships.

It cannot be the case that a person is barred from claiming damages just because they were not married to the deceased person.

Whilst no amount of compensation can reflect the grief and heartbreak experienced when a loved one dies, particularly in circumstances where the death was caused by a negligent act, the current cap of £12,980 on bereavement damages is pitiful and as APIL has quite rightly stated ‘it should not be cheaper to kill than to maim.’

Finally, the Health Secretary is currently driving a separate change to the law which will mean that clinical negligence claims considered to be ‘low value’ will be extremely difficult to bring, unless claimants can fund part of the litigation themselves.

If bereavement awards are not adequately increased, cases involving the loss of a child will fall into this ‘low value’ category and bereaved parents will be prevented from accessing the justice and answers they deserve.