Lowering the hurdles to compensation

A vital private member’s Bill making its way through parliament has the potential to overhaul the law surrounding psychiatric injury (suffered as a result of witnessing the death or injury of others) and compensation for bereavement.

The Negligence and Damages Bill was presented to the House of Commons by the Labour MP for Middlesbrough, Andy McDonald. It was drawn from a survey carried out by the Association of Personal Injury Lawyers (APIL), which has long been campaigning for greater fairness for victims of psychiatric harm and for bereaved people.

In explaining the reasoning for the Bill, McDonald said that ‘some aspects of the law affecting people who have been injured or bereaved through no fault of their own are out of date and unjust, and my Bill aims to address this’.

Reform is long overdue: the law on psychiatric injury as it stands evolved out of the Hillsborough disaster, which took place over 25 years ago. Ever since, victims of psychiatric injury have had to overcome a number of hurdles in order obtain compensation.

‘Close tie of love and affection’

Under the current law there must have been a ‘close tie of love and affection’ between the claimant and the person injured or killed, and this close tie is assumed where the claimant is the parent, child, spouse, or fiancé of the person injured or killed. With all other relationships – from siblings to cohabitees and friends – the existence of such a close tie must be proved.

Similarly, the event causing the injury or death must be ‘shocking’ – in other words, the event must have had a direct and immediate impact on the claimant’s senses. They would also need to have been close to the injury or death in both time and space.

The Bill seeks to change the law by extending the list of relationships where there is assumed to have been a close tie of love and affection. It also aims to repeal the legal requirement for the event to have been ‘shocking’, which would mean that someone who witnesses the death of a loved one over an extended period would be eligible to make a claim.

The Bill would also do away with the requirement that the injured person be close to the event in terms of time and space. Accordingly, claimants would be able to seek compensation for psychiatric injury where they did not witness the actual accident but were subsequently notified of it.

Minimal damages

As well as psychiatric injury, the Bill also addresses the law surrounding bereavement damages. Under the Fatal Accidents Act 1976, the level of compensation for bereavement is fixed at a minimal £12,980. The class of relatives eligible to claim this award is limited – only the spouse or civil partner of the deceased, and the parents where the deceased is under 18 years of age, can claim. 

This is in stark contrast to our neighbours. In Scotland, for example, compensation is paid to a wider group of people, and Scottish judges are free to decide who should be awarded bereavement damages. They ?can also assess the amount of damages that should be received by considering the individual relationship. Consequently, bereaved families in Scotland tend to receive significantly higher awards. 

In Northern Ireland, bereavement damages have recently increased from £11,800 to £14,200, following a consultation from the Department of Justice. Therefore, bereavement compensation is currently lower in England and Wales than anywhere else in the UK. In the Republic of Ireland, the payment can be anything up to €35,000.

In APIL’s survey, 80 per cent of respondents felt the Scottish system was fairer than the one in place in England and Wales. The same survey showed that 74 per cent of people think bereavement damages should be decided on a case-by-case basis – under the current law, you can receive more damages for a seriously injured thumb than a bereavement. The survey also revealed that over 80 per cent of people feel claimants should be entitled to more than £15,000 in bereavement damages, with as many as 57 per cent thinking these damages should be over £100,000.

The Bill seeks to repeal the provisions of the Fatal Accidents Act 1976 and bring the law in line with the situation in Scotland, putting the powers in the hands of the court to decide the level of the award and the range of parties to whom it can be awarded.

The Bill had its first reading unchallenged in the House of Commons on 13 October 2015 and, following some delay, it is now due to have its second reading on 22 April 2016. Even if the Bill does not become law, as is often the case with private members’ Bills, it has applied pressure on the government to amend the law and it has helped bring crucial issues into the public consciousness.

Ben Pepper is a solicitor at Bolt Burdon Kemp @BoltBurdonKemp www.boltburdonkemp.co.uk

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