Recently introduced legislation in the House of Commons, the Negligence and Damages Bill could herald the much-needed upgrading to how the England and Wales law treats victims and bereaved families due to psychiatric harm.
The new private bill known as the Negligence and Damages Bill was presented to the House of Commons on 13th October 2015 by Labour M.P Andy McDonald. Among the proposals contained in the Bill is to extend the current list of statutory relationships recognised by law. This is where it is assumed that there exists a ‘close tie of affection and love’. The Bill further wants to extend the family list of who are eligible to claim damages related to bereavement. The proposals will in addition bring Wales and England more in conformity to the law in Scotland, where every case gets evaluated purely on its own particular merits.
The 2 basic features of what the Bill wants to achieve are:
- To address itself to what has for long been viewed as an unfair obstacle placed before those suffering from psychiatric harm.
- To have the way in which the calculations for bereavement damages are done.
The Legal Position Today
Currently, the legal position remains as was developed following the Hillsborough disaster of 1989.
Main features include:
- The harm that has been suffered by a damages claimant must constitute psychiatric condition that is recognisable.
- The person claiming damages should have a very close tie of affection and love with the killed or injured person.
- If the person claiming damages is a child, spouse, fiancé, parent of the killed or injured person, an assumption of a close tie must be made. Any other person will need to prove how close the relationship was.
- The circumstances causing the injury or death must be quite “shocking”, having direct impact the claimant’s senses.
- The person claiming damages has to be very close to the death or injury when considered both in regard to time and space.
The Proposed Changes
Losing a loved one could be an extremely traumatising life experiences and the loss can be quite heavy when this is due to an act of negligence by somebody else.
The new bill is proposing a new legal framework, which effectively relaxes the existing requirements in a number of important ways:
- While the requirement of proving a recognisable psychiatric harm condition will stay in force, just as the requirement to establish the existence of close affection and love ties, the proposed list of recognised relationships is to be extended to cover children, siblings, parents, fiancé, spouse, cohabitees, civil partners, former civil partners and spouses, grandchildren, grandparents, uncles, aunts, nieces and nephews.
- It also proposes to cover non-family persons like friends and colleagues, one who was reared in the same homestead with the victim and anybody who recognised the dead/injured as a grandchild or child of their own family.
- Anybody who is not covered in the newly revised list has to prove that there exists a close affection and love tie.
- To have the requirement that stipulates that the event that caused the death or injury was “shocking” repealed. In effect, this will leave room for claims associated to events that could have occurred during an extended duration of time like witnessing a loved one’s death due to medical malpractice or negligence.
- To have repealed the requirement that makes it mandatory for the claimant to prove he/she was close to the death or injury in space and time. This removes the requirement of having physically witnessed the event.
The Amount of Bereavement Damages
Currently, the compensation amount paid out to a claimant is done according to the provisions of The 1976 Fatal Accidents Act. It is a fixed arbitrary lump sum, presently set at £12,980, not considering the personal circumstances surrounding the person claiming. The amount can only be claimed by the civil partner or spouse of the dead person and the parents of any unmarried child under below 18. In the situation of an illegitimate child, it’s only the mother who can claim.
The bill specifically seeks to have the following provisions repealed:
- To have the fixed award removed and the power to decide given to the Court to decide.
- To substantially extend the “relatives” list to cover civil partner or spouse, cohabitee, child or parent, sister or brother, uncle or aunt, niece or nephew, or fiancé(e).
The legal changes proposed will now reflect the existing situation in found in Scotland.
The Negligence and Damages Bill 2015/16 provisions will, in case they make it to the statute book, offer a clear and useful law codification that relates to all damages for bereavement damages, psychiatric harm as well as the classes of persons entitled to submit compensation claims. Through proposing to expand the potential claimants list, it is providing a welcome indicator of how family and societal relationships have undergone through significant changes since the time of framing the current legislation in the 1970/80s.