Ministry of Justice (Department for Constitutional Affairs) consultation on:
The Law on Damages
Response from Brake, the road safety charity, July/August 2007
About Brake
Brake is a national road safety charity, dedicated to stopping deaths and injuries on roads and caring for people bereaved and affected by road crashes.
Brake works to prevent road death and injury through education, advice and campaigns. It also works with people bereaved and seriously injured in road crashes to campaign for changes in the law, which will benefit road safety and help provide much-needed support for road crash victims.
Brake’s division BrakeCare provides support services for people affected by road crashes, including a range of support literature; a helpline, staffed by paid professionals; and a fledgling face-to-face support service. (BrakeCare’s provision of support literature to all families in England and Wales bereaved by road death is referenced in point 5.135 of the CJS Code of Practice for Victims of Crime.) Through these services, Brake provides basic information on civil claims for damages following death and injury on the road and carries out advocacy work to empower people to access specialist help with civil claims.
BrakeCare also provides support and training for professionals working with people affected by road crashes, including personal injury solicitors, and runs an annual conference promoting best practice support for people bereaved and injured by a traumatic event, such as a road crash.
The Law on Damages – Brake’s response
GENERAL COMMENTS
Brake welcomes this consultation on damages, as it has long been concerned that the Government has not acted on the recommendations in the Law Commission reports on claims for wrongful death (report 263) and liability for psychiatric illness (report 249), many of which could hugely benefit people bereaved and injured in road crashes. We are encouraged that the Government has accepted some of the Law Commission recommendations, but would urge more wide-ranging reforms.
In Brake’s experience of working with families bereaved and injured in road crashes, all too many people have an overwhelming feeling of being let down by civil law. Bereavement damages are paltry and many utterly bereft people are further distressed to find that, in the subjective eyes of the law, their relationship with a loved one who has died is not deemed close enough to be awarded even a token payment for their grief and loss. Liability for psychiatric illnesses such as Post Traumatic Stress Disorder, which is extremely debilitating, is in desperate need of reform. It is patently unfair that when psychiatric illness results from a death or serious injury due to another person’s negligence, exacerbating devastating grief and loss, sufferers are excluded from being able to claim by the current severe restrictions on eligibility, which often seem arbitrary.
It is worth noting that, despite popular belief, there is no Government-funded financial or emotional support for anyone bereaved or injured in a road crash and no statutory compensation authority. The Government’s Criminal Injuries Compensation Authority is not authorised to make awards in cases of road death or injury, except in very rare cases where it can be proven that the vehicle was being used as a weapon[1]. This means that damages under civil law are the only possible route for people bereaved or injured in a road crash to receive any compensation at all – it is crucial that any reform of the law gives priority to the needs of people bereaved and seriously injured.
In amending the law on damages, the Government should be led by the principle of full and fair compensation, which ensures that victims do not suffer financially and respectfully acknowledges their grief and loss. With this in mind, Brake is concerned to see references in the consultation paper to the need to ‘stop a compensation culture from developing’; avoid a ‘disproportionate fear of litigation and risk averse behaviour’; and balance the interests of claimants with those of defendants and their insurers. These concerns should not apply to this area of civil law – the principle of full compensation which is fair to the claimant should override any concerns about financial consequences to the defendant and their insurers.
SPECIFIC COMMENTS ON PROPOSALS
Chapter 1 – Claims for wrongful death
Question 1a – Do you agree that a residual category should be added to the statutory list of those entitled to claim for financial loss?
In Brake’s view, it is vital that the statutory list of people who are able to claim for financial loss under the Fatal Accidents Act is extended. As outlined in the introduction to this consultation paper, ‘the aim of the civil law should be to provide compensation for loss’. Adding this category to the statutory list of individuals entitled to claim for financial loss will help to make sure that anyone actually dependent on a person who has died is not denied the ability to make a claim simply because they are not on a statutory list.
Question 1b – Do you agree that this residual category should be limited to any person who was being wholly or partly maintained by the deceased immediately before the death?
Brake does not agree that the residual category should be limited to any person who was being wholly or partly maintained by the deceased immediately before the death. It is quite possible that someone who was not being maintained immediately before the death would have been maintained at some later date. This limitation would, for instance, prevent claims being brought on the behalf of an unborn child, even though the child would have naturally expected to have been maintained by the person if they had lived.
Brake does not accept that extending this residual category to any person who would have been wholly or partly maintained after the death would necessarily lead to ‘loosely framed and speculative claims which would be difficult to prove or disprove’ – we are confident of the courts’ ability to distinguish claims of merit. However, introducing the limitation would undoubtedly mean undeserved financial hardship for some individuals who would not be eligible to claim.
Funeral expenses (paragraph 9, p14)
While the Law Commission did not consider that any statutory reform was needed in relation to the recovery of funeral expenses, Brake does not agree. As outlined in the Motor Accident Solicitors Society (MASS) response to this consultation, the law in this area often appears arbitrary and can operate unfairly, causing further distress to grieving families. In Brake’s view, all of the examples given by MASS in its consultation response are very pertinent, but the arbitrary nature of the law is particularly evident in the following two examples:
· recovery of funeral expenses is allowed, but recovery of the expenses for a wake is not;
· recovery of the cost of a headstone is allowed, but recovery of the cost of a memorial stone is not.
As any trauma or bereavement expert will confirm, it is very important for grieving families to be given the ability to make their own choices about the appropriate way to conduct a funeral, or remember a person who has died. The law here is unfairly restrictive, limiting families’ options unnecessarily.
Question 2a – Do you agree that the fact of a person’s remarriage or entry into a civil partnership should be taken into account when assessing a claim for damages under the FAA?
Brake does not agree that the fact of a person’s remarriage or entry into a civil partnership should be taken into account when assessing a claim for damages under the FAA. In practice, this would mean that the tortfeasor would be ‘let off’ their obligation to support the bereaved spouse or civil partner, which would be unfairly passed to their new spouse or partner.
Question 2b – Do you consider that the fact of a person’s financially supportive cohabitation of at least two years following the death should be taken into account?
For the same reason given in response to question 2a, Brake does not consider that the fact of a person’s financially supportive cohabitation of at least two years following the death should be taken into account.
Question 2c – Do you agree that the prospects of a person’s remarriage, entry into a civil partnership or financially supportive cohabitation should not be taken into account in any circumstances (including where the person is engaged)? If not, in what circumstances would it be appropriate to do so?
For the same reason given in response to question 2a, Brake agrees that the prospects of a person’s remarriage, entry into a civil partnership or financially supportive cohabitation should not be taken into account.
It would be highly intrusive for a bereaved person’s prospects of remarriage, entry into a civil partnership or financially supportive cohabitation to be considered as a potential element to limit an award – this would only encourage tortfeasors and their insurance companies to pursue lines of questioning and investigation which could not fail to be personal, extremely intrusive and potentially highly offensive to a bereaved spouse or partner.
In addition, any conclusions drawn as to the prospects of remarriage, entry into a civil partnership or financially supportive cohabitation would be necessarily highly subjective, making it impossible to ensure an even-handed approach.
Question 3a – Do you agree that the fact of a person’s remarriage or entry into a civil partnership should be taken into account when assessing a claim for damages on the part of any eligible children?
For the same reason given in response to question 2a, Brake does not agree that the fact of a person’s remarriage or entry into a civil partnership should be taken into account when assessing a claim for damages on the part of any eligible children.
Question 3b – Do you consider that the fact of a person’s financially supportive cohabitation of at least two years following the death should be taken into account when assessing a claim for damages on the part of any eligible children?
For the same reason given in response to question 2a, Brake does not agree that the fact of a person’s financially supportive cohabitation of at least two years following the death should be taken into account when assessing a claim for damages on the part of any eligible children.
Question 4 – Do you agree that the courts should only take into account the prospect of divorce, dissolution or breakdown in the relationship between the deceased and his or her spouse or civil partner:
a) Where the couple are no longer living together at the time of the death
b) Where one has petitioned for divorce, judicial separation or nullity
c) Where one has begun the procedure for dissolution of the civil partnership?
Brake does not agree that the courts should take into account the fact that a couple were no longer living together at the time of death as evidence that the relationship had irretrievably broken down. Separations are not uncommon in long-term relationships and even long separations may be consistent with financial dependency.
There are many reasons why a couple may not be living together, including: working away from home; needing full-time care in hospital; providing full-time care for a family member away from home; or living apart for a short time in order to work on problems in their relationship, in the full expectation of returning to live together. Taking the fact that a couple were not living together at the time of a death into account would inevitably lead to undeserved financial hardship for some individuals who would not be eligible to claim.
In Brake’s view, if the fact that a couple were not living together at the time of death were to be taken into account, this would inevitably lead to unnecessarily intrusive and potentially highly offensive lines of questioning and investigation for the bereaved spouse or partner.
Where the process of divorce, judicial separation, nullity or dissolution of the relationship has been set in progress, it is fair to take this into account. However, this should not automatically exclude a bereaved partner from making a claim. The law must ensure that in these circumstances the bereaved partner is, at the very least, eligible to claim for bereavement damages to compensate for any maintenance they would have been likely to receive in a divorce settlement.
Question 5 – Do you agree that the section 3(4) of the FAA should be repealed and 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 under the FAA?
Brake agrees that section 3(4) of the FAA should be repealed and replaced by a provision to the effect that the prospect of breakdown in the relationship between a person who has died and their partner should not be taken into account when assessing damages under the FAA.
Chapter 2 – Bereavement damages
Question 6 – Do you consider that bereavement damages should continue to be available?
Brake considers it very important that bereavement damages should continue to be available. While no amount of money can actually ‘compensate’ for the untimely death of a loved one due to the negligence of another person, it is important for society to recognise this loss and unnecessary grief. Where the death has been caused in a road crash, the civil claims system is often one of the only ways in which this can be done.