(A) CLAIMS FOR WRONGFUL DEATH

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1 THE LAW ON DAMAGES (A) CLAIMS FOR WRONGFUL DEATH (B) BEREAVEMENT DAMAGES (C) DAMAGES FOR GRATUITOUS CARE Published on 23 April 2012 This consultation will end on 18 July 2012

2 This consultation exercise is being conducted by the Department of Finance and Personnel. This paper is also available on the Department of Finance and Personnel s website: The Department of Finance and Personnel

3 CONTENTS Part One: Introduction 1 Part Two: Claims for Wrongful Death 6 Part Three: Bereavement Damages 19 Part Four: Damages for Gratuitous Care 30 Annex A: Note on Republic of Ireland s 45 Civil Liability Act 1961 (as amended) Annex B: The consultation criteria 47 Annex C: Respondent Form 48 Annex D: List of Consultees 68

4 PART ONE: INTRODUCTION 1.1 The law on damages in Northern Ireland is more or less identical to the law on damages in England & Wales. As a largely common law based system of rules (judge-made), the law applied by the courts in both jurisdictions has historically been the same. Likewise, where legislation has been introduced in England & Wales to address specific aspects of the common law of damages, similar statutory changes have been made to the law in Northern Ireland This is an area of law, therefore, where there is an expectation both from practitioners and from the plaintiff and respondent communities that the law in both jurisdictions will remain in step. Any decision for the law in Northern Ireland to depart from the law in England & Wales needs careful consideration and justification, though it should always remain a possibility. 1.3 The purpose of this Paper is to examine the current law in Northern Ireland in connection with fatal accidents or claims for wrongful death, 2 and to consider whether recent proposals for changes to the law of damages in England & Wales would, in principle, be appropriate for Northern Ireland. It is worth noting that the Scottish Government has recently examined its law in relation to claims for wrongful death. 3 Background 1.4 In 2007 the Ministry of Justice published a Consultation Paper examining various aspects of the law on damages and related issues. 4 That Paper considered in detail the recommendations contained in four 1 For example changes made by the Damages Act 1996 apply equally to Northern Ireland and England & Wales. 2 The governing legislation is the Fatal Accidents (Northern Ireland) Order 1977, as amended, principally by the Administration of Justice Act The Scottish Government published a consultation paper on damages for wrongful death in July 2010 and the analysis of the responses to the consultation paper in September The Scottish Parliament passed the Damages (Scotland) Act 2011 and it was brought into force on 7 July Ministry of Justice, Civil Law of Damages (May 2007). 1

5 reports of the Law Commission for England and Wales which were published in the 1990s: Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997); legislative clarification in relation to the purpose of aggravated damages, the availability of exemplary damages and restitutionary damages. Liability for Psychiatric Illness (Law Com No 249, 1998); the introduction of statutory provisions in relation to claims for psychiatric illness; Claims for Wrongful Death (Law Com No 262, 1999); proposing changes to the Fatal Accidents Act 1976; Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits (Law Com No 263, 1999); issues relating to the calculation of damages for costs of care and accommodation expenses; for the treatment of collateral benefits in determining the amount of damages which may be awarded. 1.5 This was followed in July 2009 by the publication in England & Wales by the Ministry of Justice of a White Paper setting out in more detail proposed changes to the law of damages. 5 Finally, a draft Civil Law Reform Bill containing amendments to the law of damages, specifically amendments to the fatal accidents legislation in England & Wales, was published by the previous UK Government in December This was accompanied by a further Consultation Paper on the draft Bill The 2009 draft Civil Law Reform Bill ( 2009 draft Bill ) did not propose legislative change in respect of all of the recommendations made by the Law Commission. The changes put forward were confined to amendments to the Fatal Accidents Act 1976 ( 1976 Act ), and miscellaneous changes to the law on aggravated, exemplary and 5 Ministry of Justice, Consultation on the Law of Damages (July 2009). 6 Ministry of Justice, Civil Law Reform A Draft Bill (December 2009). 7 Ministry of Justice, Civil Law Reform Bill Consultation (15 December 2009). 2

6 restitutionary damages. 8 This was because the July 2009 White Paper had concluded that statutory reform of the other aspects of the law on damages was not warranted. Mesothelioma claims 1.7 The Mesothelioma, Etc., Act (Northern Ireland) 2008 makes provision in Northern Ireland corresponding to that contained in Part 4 of the Child Maintenance and Other Payments Act This entitles any person suffering from diffuse mesothelioma, or a dependant of that person, to claim a lump sum payment from the Government if the claimant is able to satisfy specific conditions of entitlement. 10 The question of compensation for mesothelioma claims will not be discussed further in this Paper. Pleural Plaques 1.8 The issue of whether the presence of pleural plaques should give rise to an action in tort for damages for personal injury was the subject of a separate consultation in Northern Ireland in October A draft Bill was published in July 2010 for further consultation 12 and the Bill was duly introduced into the Assembly on 14 December 2010, completing its passage through the Assembly on 21 March The Damages (Asbestos-Related Conditions) Act (Northern Ireland) 2011 was brought into force on 14 December As this issue has already been addressed, it will not be discussed further in this Paper. 8 These miscellaneous changes relate to awards of damages in connection with infringements of intellectual property rights. The law on intellectual property rights is reserved to the Westminster Parliament under Schedule 3 to the Northern Ireland Act 1998 and the proposed amendments are, therefore, not considered further in this Paper. 9 It also amends the Social Security (Recovery of Benefits) (Northern Ireland) Order 1997 to provide DSD with the power to recover payments made under the Pneumoconiosis, etc., (Workers Compensation) (Northern Ireland) Order 1979 or under the new 2008 scheme, where a person subsequently receives compensation from a civil claim. 10 It introduces a scheme whereby availability of compensation to sufferers of diffuse mesothelioma is extended to include those who were exposed to asbestos other than in the workplace and who were unable to claim compensation from other sources. This scheme provides up-front financial support (within sixteen weeks) to those people who are not currently eligible for help from the Government. 11 Pleural Plaques, Consultation Paper CP 02/08 (DFP) 12 Consultation by the Department of Finance and Personnel on the draft Damages (Asbestos- Related Conditions) Bill (Northern Ireland)

7 Law Reform Advisory Committee for Northern Ireland 1.9 The Law Commission s two Reports on Aggravated, Exemplary and Restitutionary Damages and Liability for Psychiatric Illness were considered in detail by the Law Reform Advisory Committee for Northern Ireland, which set out its conclusions in two Reports published in The Committee broadly endorsed the recommendations of the Law Commission. 13 In its Eleventh Annual Report in 2000, the Committee also noted its full agreement with the recommendations of the Law Commission in its Reports on Claims for Wrongful Deaths and Collateral Benefits. 14 Structure of this Paper 1.10 Part Two of this Paper examines the law relating to claims for dependency damages under the Fatal Accidents (Northern Ireland) Order 1977 ( the 1977 Order ). In this Part the Department seeks views on whether the changes to dependency claims which were proposed in the Ministry of Justice s 2009 draft Bill should be introduced in Northern Ireland Part Three examines the current law on bereavement damages under the 1977 Order. Here the Department suggests that the law in Northern Ireland should not follow the proposals in England & Wales in relation to the extension of eligibility of bereavement damages. Indeed the Department goes so far as to seek views on whether bereavement damages should be abolished Part Four goes wider than Parts Two and Three, in that it deals with the issue of damages for gratuitous care in the context of both personal injury litigation and claims in relation to fatal accidents. This Part raises the issue of compensation for (a) past and future gratuitous care provided to the injured claimant, and (b) gratuitous care which would have been 13 LRAC (NI) Reports Nos 8 and LRAC (NI) Eleventh Annual Report, page 19 (2000). 4

8 provided by the deceased to others, if death had not occurred. This is a complex area of law where, for the sake of simplicity, we believe that there are good arguments why the law in Northern Ireland should keep in step with England & Wales. The 2009 draft Bill published by the previous UK Government departed somewhat from the recommendations of the Law Commission. The 2010 Report of the UK Parliament s Justice Select Committee favoured the Law Commission s approach to legislative reform of this area and, in evidence to that Committee, the Ministry of Justice undertook to give the matter further consideration. 15 Following the election of the UK Coalition Government an announcement was made on 10 January 2011 to the effect that the reforms relating to the Law Commission s Reports on Damages would not be taken forward. 16 Equality and regulatory issues 1.13 The Department is raising many of these questions for the first time. Although the law of damages originates in judge-made law it has been developed significantly by legislation introduced during periods of Direct Rule. The statutory reforms in 1977 and 1982 were made for Northern Ireland in the absence of the type of consultation which the Department would now consider appropriate. The Department has come to no firm conclusions on the issues raised in this Paper. This Paper is intended to begin a debate on these complex issues in Northern Ireland, rather than seek at this stage a public endorsement of provisional policy proposals. For this reason the Department considers it premature to produce any equality or regulatory impact on changes which may or may not arise from this initial consultation. 15 Justice Select Committee, Draft Civil Law Reform Bill: pre-legislative scrutiny (HC 300-1: 31 March 2010). 16 Hansard HC 2011, vol 521, col 8WS. 5

9 PART TWO: CLAIMS FOR WRONGFUL DEATH 2.1 Where a person is injured as a result of the wrongful act, neglect or default of another, the common law allows the injured party to sue the person who has committed the wrong for damages. The damages recoverable may be for pecuniary loss (such as loss of earnings while off work) and non-pecuniary loss (such as pain and suffering endured as a result of the physical injury). 2.2 What happens if the person injured dies as a result of the injuries wrongfully inflicted? Although at common law an action in tort for personal injuries dies with the injured person, since 1937 statute law has provided that the claim against the person who caused the injury survives the death of the injured person. Section 14(1) of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1937 reads: Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action against or vested in him shall survive against, or as the case may, for the benefit of, his estate. So, even if the injured person dies, his personal representatives can maintain an action for the benefit of his estate Statute law has also long recognised that a separate right of action arises for the dependants of the deceased in cases where the death has been caused by a wrongful act, 18 although such an action is unknown at common law. 19 The modern law is now found in the 1977 Order. 2.4 Northern Ireland is not unique in allowing for a claim by a dependant. The Fatal Accidents Act 1976 makes similar provision in 17 This Northern Ireland legislation followed the Law Reform (Miscellaneous Provisions) Act 1934 in England & Wales. 18 This separate right of action in favour of the dependants of the deceased was first introduced by the Fatal Accidents Act 1846 (known as Lord Campbell s Act), which extended to Ireland. 19 Baker v Bolton (1808) 1 Camp

10 England and Wales and the Civil Liability Act 1961 (as amended) makes similar provision in the Republic of Ireland. 20 Scotland has recently amended its law in this area by means of the Damages (Scotland) Act Only certain categories of people are eligible to claim for financial loss as dependants of the deceased. In Northern Ireland, Article 2(2) of the 1977 Order defines a dependant as: (a) the wife or husband or former wife or husband of the deceased; (aa) the civil partner or former civil partner of the deceased; (b) any person who (i) was living with the deceased in the same household immediately before the date of death; and (ii) had been living with the deceased in the same household for at least two years before that date; and (iii) was living during the whole of that period as the husband or wife or civil partner of the deceased; (c) any parent or other ascendant of the deceased; (d) any person who was treated by the deceased as his parent; (e) a child or other descendant of the deceased; (f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage; (fa) any person (not being a child of the deceased) who, in the case of any civil partnership to which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership; (g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased 2.6 Dependant is therefore given a very wide definition and may encompass, according to the particular family circumstances of the deceased: spouses/civil partners and former spouses/civil partners; cohabitants who have lived together for at least two years immediately preceding the death; parents (including those treated as parents by the 20 Annex A to this Paper contains a note on the legislative scheme in the Republic of Ireland asp 7. 7

11 deceased); grandparents and great grandparents; children (or persons treated as children of the deceased); grandchildren and great grandchildren; siblings and their children and grandchildren; and uncles and aunts and their children and grandchildren. Any person who depended on the deceased but is not included in any of the categories of dependant as defined in Article 2(2) of the 1977 Order is unable to make a claim for financial loss. Proposals for change in England & Wales 2.7 In 2007 the Ministry of Justice published its first Consultation Paper dealing with fatal accidents dependency claims and proposed a number of changes to the 1976 Act, many of which supported and built upon those made previously by the Law Commission in its 1999 Report on Claims for Wrongful Death. 22 Extending the category of eligible claimants 2.8 Given that the current statutory list is exhaustive, it had been argued by the Law Commission that this denied a right of action to otherwise meritorious potential claimants who were also dependant on the deceased. The Commission recommended that the statutory list of claimants eligible to make a claim for financial loss as dependants should be extended to include any person who was being wholly or partly maintained by the deceased immediately before the death or who would, but for the death, have been so maintained at a time beginning after the death. 2.9 The Ministry of Justice supported the first part of the proposed definition. However it did not accept the second part of the definition (which relates to future dependency claims), as it believed that it met no significant need, was open-ended and would encourage general speculative claims, which would be difficult to prove or disprove. The 2009 draft Bill provided for the amendment of the 1976 Act to add a residual 22 Law Com No

12 category of claimant, namely any person who was being wholly or partly maintained by the deceased immediately before the death It is, perhaps, worth noting that the Court of Appeal in England & Wales had previously suggested that it would be simpler to have a provision which allowed any person who could show a relationship of financial dependence on the deceased to make a claim. 24 This was also the idea originally favoured by the Law Commission in its 1997 Consultation Paper. 25 The dependant s new relationship 2.11 Under the current legislation, provision is made only in respect of the remarriage or prospects of remarriage of a widow in respect of the death of her husband and to the extent that her remarriage or the prospects of remarriage shall not be taken into account in the assessment of damages payable to such a widow The previous UK Government, like the Law Commission before it, came to the conclusion that the prospects of the claimant remarrying, entering into a civil partnership or entering into a financially supportive cohabitation 26 should not be taken into account by the court in assessing damages. The UK Parliament s Justice Select Committee went further and recommended that that should be made clear on the face of the legislation. 23 See Clause 1(2) of the 2009 draft Bill. As the Justice Select Committee pointed out, the amendment in the draft Bill refers only to the person being maintained by the deceased it does not specify that this includes being wholly or partly maintained by the deceased; Justice Select Committee Report (2010), paragraphs Shepherd v Post Office, The Times 15 June Consultation Paper No 148, paragraph 4.6; We are of the provisional view that the statutory list should be abolished and replaced by a test whereby any individual has a right of recovery who had a reasonable expectation of a non-business benefit from continuation of the deceased s life, or a test whereby any individual has a right of recovery who was or, but for the death, would have been dependent, wholly or partly, on the deceased.. 26 In the 2009 Draft Bill this is referred to as a relevant relationship and is defined, in Clause 2(3), in the following terms, a person has entered into a relevant relationship if (a) at the time when the action is brought, A lives with another person (B) as B s husband or wife or civil partner, (b) A has been so living for at least 2 years, and (c) A is maintained by B. 9

13 2.13 However, the UK Government was prepared to take account of the fact that the claimant had remarried, formed a civil partnership or entered into a financially supportive cohabitation of at least 2 years duration. 27 The state of the dependant s marriage or civil partnership 2.14 The previous UK Government s Papers also addressed the extent to which the court should take into account the prospect of divorce, or dissolution of a civil partnership, in assessing the level of damages. The current legislation is silent on this issue It concluded, like the Law Commission before it, that the court should only take into account the prospects of divorce etc, where one party had begun the formal process of ending the marriage or civil partnership by petitioning for divorce/dissolution of civil partnership or made an application for judicial separation or nullity In addition, the court would also be able to take into account the prospect of the marriage or civil partnership ending where the dependant and deceased were no longer living together immediately before the death. The state of a cohabiting dependant s relationship 2.17 The current legislation provides that, in the assessment of damages to be awarded to a claimant who was cohabiting with the deceased, there shall be taken into account the fact that the claimant had no enforceable right to financial support from the deceased as a result of their living together. 29 The previous UK Government concluded that this provision should be repealed and replaced with a provision to the effect that the prospect of the breakdown of a relevant cohabiting relationship should not be taken into account when assessing damages. 27 Clause 2(2) of the 2009 draft Bill. 28 Clause 3(2) of the 2009 draft Bill. 29 Section 3(4) of the 1976 Act. 10

14 The effect of the surviving parent s new relationship on dependency awards to children of the deceased 2.18 Neither the Law Commission s 1997 Consultation Paper nor its 1999 Report made any mention of whether the assessment of dependency damages for a child should be affected by the child s surviving parent forming a new relationship. The issue was, however, raised by the Ministry of Justice in its 2007 Consultation Paper, and the 2009 draft Bill provided that, 30 in assessing the damages to be awarded to a person who is a child of the deceased, the court may take into account the fact that the surviving parent has, since the death of the child s other parent, (a) married or remarried, (b) entered into a civil partnership, or (c) entered into a relevant cohabiting relationship. Accordingly, under that proposal, the court would not be required to take the surviving parent s new relationship into account That proposal was endorsed by the Justice Select Committee in its 2010 Report: 32 We believe that the courts should have discretion to take account of a parent s new relationship when assessing a child s dependency damages, as this will allow it to consider the realities of the child s financial loss. We reject the submission that the court s discretion in this regard be limited by ruling out consideration of new relationships or requiring them to be taken into account. Children have no control over parental relationships and there is no obligation on a new partner to support them, however, some will acquire a loving and supportive carer. The wider discretion allows for a common sense approach to ensure justice to the child and avoid the risk of over compensation. Proposals for reform in Northern Ireland 2.20 As noted in the Introduction, the legislation governing compensation for fatal accidents is the same in Northern Ireland as in England & Wales, and there has been a tradition of parity in treatment of 30 Clause 2(3) of the 2009 draft Bill inserting new subsection (3A) into section 3 of the 1976 Act. 31 Clause 4 of the 2009 draft Bill. 32 Paragraph

15 these issues across the two jurisdictions. The limited reforms to the 1976 Act proposed by previous UK Government in connection with dependency claims were not, however, always universally supported on public consultation in England & Wales. There remain questions as to how appropriate it is for the courts to have to take into account the state of the parties marriage or civil partnership at the time of the death giving rise to the action for damages There has been no significant consultation or debate on these issues in Northern Ireland in recent years and DFP would wish to consult very widely before bringing forward proposals for legislative change. While there is a compelling argument for reflecting developments in England & Wales on many of the issues raised, the Department does not believe that the parity argument on its own is sufficient to determine the policy on these matters. Eligible dependency claimants 2.22 There is, however, now a degree of consensus that the exhaustive list of eligible claimants, as set out in Article 2(2) of the 1977 Order is unduly restrictive and can cause hardship to those classes of persons who, while dependant on the deceased, do not appear in the statutory list. The Department agrees that it would be appropriate to amend the statutory list by adding a residual category of dependant, namely any individual 33 who was wholly or partly maintained by the deceased The Justice Select Committee of the House of Commons at Westminster has suggested that it should be made explicit that the residual category includes those who were being maintained by the deceased before the accident, but not immediately before the deceased s death (perhaps because the person was not in fact supporting the dependants at the time of death because of illness) The reference to individual as opposed to person ensures that organisations will not be able to claim dependency. 34 Paragraph

16 2.24 It was proposed by the Law Commission in its 1999 Report being maintained should mean: A person shall be treated as being wholly or partly maintained by another if that person otherwise than for full valuable consideration, was making a substantial contribution in money or money s worth towards the dependant s reasonable needs. This definition was agreed by the previous UK Government and endorsed by the Justice Select Committee of the House of Commons. Question 1 Do you agree that the Fatal Accidents (Northern Ireland) Order 1977 should be amended to include a residual category of claimant limited to an individual who was wholly or partly maintained by the deceased immediately before the deceased s death or the accident that led to the death? Future dependency? 2.25 The Department does not share the concern expressed by the previous UK Government that including within this new residuary category of claimant those who would, but for the death, have been so maintained at a time beginning after the death is too open-ended and could give rise to unduly speculative litigation. The Department agrees with the original Law Commission recommendation on this point, which was endorsed by the Justice Select Committee in its 2010 Report on the 2009 draft Bill. The purpose of this extension is to permit a dependency claim from someone who, although not maintained by the deceased at the time of the death, would have been maintained subsequently by the deceased if the person had not in fact died. This would cover, for example, the dependency loss of a cohabitant of less than 2 years who was about to give up work to have the deceased s child. 13

17 Question 2 Do you agree that the new residual category of dependant should include those whose dependency would have begun after the death? The claimant s remarriage etc 2.26 A major issue discussed in the 2007 Ministry of Justice Consultation Paper and its 2009 response document is the extent to which the claimant s remarriage etc, or prospects of remarriage should be taken into account in assessing the level of damages available. Article 5(3) of the 1977 Order currently provides that, where damages fall to be assessed in an action under the Order, no account shall be taken of the remarriage of a widow or her prospects of remarriage. 35 It has been argued that this provision amounts to double recovery by the claimant the person benefits from the damages arising from the dependency claim as well as from the financial security of the subsequent marriage The previous UK Government proposed amending the law to make clear that in assessing damages the court should be able to take into account the fact that the deceased s spouse or civil partner or former spouse or civil partner has remarried or formed a new civil partnership. As at present, however, the court would not be able to take into account the prospects of the claimant s entering into a new relationship. Question 3 Do you agree that, where a claimant is the spouse or civil partner or former spouse or civil partner of the deceased, the fact (but not the prospects) of his or her remarriage or new civil partnership should be taken into account in assessing damages under the 1977 Order? 35 This provision was not amended by the Civil Partnership Act 2005 given that it deals solely with the widow of the deceased the 2005 Act confined itself to amending legislation which dealt with the treatment of spouses of both sexes. Arguably, the Human Rights Act 1998 would require the provision to be interpreted as applying equally to a widower s remarriage and the formation of a new civil partnership or the prospects of such a civil partnership by a civil partner of the deceased. 14

18 2.28 Similar considerations arise in connection with a claim by any person who is classed as a dependent by virtue of having lived with the deceased as husband or wife or civil partner in the same household for at least 2 years immediately before the death of the deceased. At present Article 5(3A) of the 1977 Order provides that, in assessing damages for a claimant who was cohabiting with the deceased, the court shall take into account the fact that the claimant had no enforceable right to financial support from the deceased as a result of their living together. The 2009 draft Bill provided for the repeal of the corresponding provision in the 1976 Act. Accordingly, it is proposed that this provision be repealed and replaced with a new provision corresponding to that which will apply to spouses and civil partners. Question 4 Do you agree that, where the claimant is a cohabiting dependant of the deceased, the fact (but not the prospects) of the claimant s new financially supportive cohabiting relationship (of at least two years duration) should be taken into account in the assessment of damages? Prospects of divorce, relationship breakdown etc 2.29 Claims may be brought under the 1977 Order by the former spouse or former civil partner of the deceased in recognition of their possible ongoing financial dependence on the deceased, notwithstanding the formal ending of their relationship. Given that it is the claimant s dependency after the fact of the divorce etc for which damages are to compensate, the 1977 Order does not refer to the matter further In relation to a claim by a person in a marriage or civil partnership which was subsisting at the time of the death, the previous UK Government recommended that, in certain circumstances, the prospect of that relationship coming to an end should be taken into account in assessing the amount of damages to be payable. It concluded that, where some formal steps had been taken to bring the marriage or civil 15

19 partnership to an end, that should be taken into account by the court in assessing the dependency damages payable to the spouse or civil partner However, the drafting adopted in the 2009 draft Bill on this issue was criticised by the Justice Select Committee. It suggested that the provisions be redrafted to make clear that the prospects of the breakdown of the relationship between the deceased and the claimant were not to be taken into account, unless the dependant or deceased had petitioned for divorce, judicial separation or nullity or had ceased to live together immediately before the date of the death. Question 5 Do you agree that the courts should not take into account in the assessment of damages the prospect that the claimant s relationship with the deceased would have ended, unless either the deceased or claimant had prior to the death applied to the courts for divorce/dissolution of a civil partnership, judicial separation or nullity, or were no longer living together immediately before the death? Children 2.32 The 2007 Ministry of Justice Paper had sought views on whether the fact that the deceased s spouse or civil partner had remarried or formed a civil partnership (or entered into a new financially supportive relationship) should be taken into account in assessing the level of damages for eligible dependent children. The rationale behind asking such questions was the assumption that any children of the deceased would benefit financially from any new relationship of the surviving parent As noted above, the 2009 draft Bill provided that, in assessing the damages to be awarded to a person who is a child of the deceased, the 16

20 court may 36 take into account the fact that the surviving parent has, since the death of the child s other parent, (a) married or remarried, (b) entered into a civil partnership, or (c) entered into a relevant cohabiting relationship The Department is not persuaded that this is desirable or necessary, despite the endorsement of this proposal by the Justice Select Committee of the House of Commons. Unlike the case of the spouse or civil partner of the deceased whose new spouse or civil partner is under a statutory duty to maintain that person, no such statutory financial obligation of maintenance is placed upon a person in relation to his or her step-children or the children of the person with whom he or she is cohabiting The question for decision is whether the 1977 Order should remain silent on this issue, or whether the legislation should be amended to make explicit provision to the effect that the subsequent relationship of the surviving parent shall not be taken into account (or to the contrary shall be taken into account) in determining the damages payable to a dependant child of the deceased. Question 6 Do you agree that: (a) the 1977 Order should remain silent on the question of whether the surviving parent s new relationship should be taken into account in assessing damages payable to a dependant child; (b) the 1977 Order should be amended to provide that the surviving parent s new relationship should not be taken into account in assessing damages payable to a dependant child; or 36 Under this proposal the court is not required to take the surviving parent s new relationship into account. 17

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