(A) CLAIMS FOR WRONGFUL DEATH

Transcription

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

21 (c) the 1977 Order should be amended to provide that the courts may take into account the surviving parent s new relationship in assessing damages payable to a dependant child? 18

22 PART THREE: BEREAVEMENT DAMAGES Introduction 3.1 Statutory bereavement damages were introduced by the Administration of Justice Act 1982, which inserted new Article 3A into the 1977 Order (and section 1A of the 1976 Act for England & Wales). Until that point bereavement damages were not available under the common law, 37 although the introduction of bereavement damages had been recommended by the Law Commission for England & Wales as far back as Fatal accidents legislation now provides that any action may consist of or include a claim for damages for bereavement for the benefit (a) of the spouse or civil partner of the deceased, or (b) if the deceased was a minor who was never married or a civil partner, for the benefit of the deceased s parents or mother (if the deceased was illegitimate). It also makes clear that where damages are awarded under this section for the benefit of both the parents of the deceased child, the sum awarded shall be divided equally between them. 39 The level of bereavement damages is currently set at 11,800 for deaths occurring on or after 1 st January For convenience, Article 3A of the 1977 Order is set out below: (1) An action under this Order may consist of or include a claim for damages for bereavement. (2) A claim for damages for bereavement shall only be for the benefit (a) of the wife or husband or civil partner of the deceased; and (b) where the deceased was a minor who was never married or a civil partner (i) of his parents, if he was legitimate; and 37 In Blake v Midland Railway (1852) 18 Q.B. 93, the court rejected a claim for compensation for a widow s grief as falling outside the scope of the fatal accidents legislation. 38 Law Commission Report No 56, Personal Injury Litigation: Assessment of Damages (1973). 39 Article 3A(4) of the 1977 Order. 40 SI 2007/

23 (ii) of his mother, if he was illegitimate. (3) Subject to paragraph (5), the sum to be awarded as damages under this Article shall be 11,800. (4) Where the claim is a claim for damages under this Article for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction fully to be made in respect of costs not recovered from the defendant). (5) The Department of Justice may by order subject to negative resolution amend this Article by varying the sum for the time being specified in paragraph (3). 3.4 Given the extent to which the 2009 draft Bill proposed to extend the availability of bereavement damages, it is worth noting the explanation given to Parliament on their introduction back in Introducing the changes to the law on the Second Reading of the Administration of Justice Bill in the House of Lords, the then Lord Chancellor, Lord Hailsham of Saint Mareylebone, said: 41 The second, and most important, change in the fatal accidents clauses will be found in the proposed new Section 1A of the 1976 Act. This will introduce a new claim for damages for bereavement and, on this I owe the House a rather fuller explanation than on other provisions of this Part. The proposal in the Bill follows the Law Commission s recommendation in It will give a fixed sum by way of damages to a spouse for the loss of the other spouse and to parents for the loss of a child. The amount is fixed by the Bill at 3,500 but would be capable of being increased by order. In deciding that this was the right approach, the Government have rejected the somewhat broader proposals that appeared in the Pearson report, which recommended a right to damages for loss of society, which would have been available also to children for the loss of a parent and which would have been tied to a figure of one-half average industrial earnings. I should add that we are not following the provisions which since 1976 have been the law in Scotland and which allow the courts a discretion to award damages for loss of society, unlimited in amount, to the same class of beneficiaries as the Pearson recommendations. Personally speaking, I believe that no monetary sum can adequately compensate a person for bereavement. It is 41 Hansard HL 1982, vol 428 cols

24 for this reason that I think the award should be of a conventional, fixed kind available only in limited circumstances. My present view is that it should not be available to an unmarried minor child in respect of the loss of a parent because,. such a child is already likely to receive substantial dependency damages in any event. Bereavement damages can add little or nothing to that and I think there are telling reasons for adopting a simple solution of the kind that appears in the Bill. 3.5 The decision in 1982 to introduce bereavement damages into the law of Northern Ireland was not subject to any significant public consultation here. The Department considers that this is now an opportune time to question the appropriateness of this kind of claim, and whether it should continue to form part of the law of Northern Ireland. The origins of bereavement damages 3.6 The Law Commission for England & Wales first recommended the introduction of statutory bereavement damages in its 1973 Report on Personal Injury Litigation: Assessment of Damages. 42 It did so with some reservation as on consultation there had been a fairly even division of opinion as to whether damages for grief or loss ought to be recoverable by the relatives of a deceased victim of a tort. 43 The Commission acknowledged this was a significant departure from common law principle, and concluded that in two cases only, there was a strong case for allowing recovery of damages for bereavement caused by the death of a close relative. 44 In these cases it suggested that the payment of a small award of damages could have some consoling effect in situations where a parent had lost a child, or a spouse his or her husband or wife The Law Commission for England & Wales revisited the issue of bereavement damages in the course of its project on claims for wrongful death in the late 1990s. In its 1997 Consultation Paper the Commission 42 Law Commission Report No 56 (1973). 43 Paragraph Paragraph Paragraphs

25 raised the question as to whether damages for bereavement should be available at all. 46 The Commission concluded that although there were good arguments in favour of abolishing them, the availability of bereavement damages was now so entrenched it would be impractical to decide as a matter of legislative policy that such damages should be abolished. Indeed, the Commission went so far as to propose that the function of bereavement damages should be explained more fully to the public as follows; the function of bereavement damages is to compensate, in so far as a standardised award of money can, grief, sorrow and the loss of the non-pecuniary benefits of a deceased s care, guidance and society The Ministry of Justice proposals from 2007 onwards have accepted this line of reasoning and, on that basis, recommended not only the retention of an action for bereavement damages under fatal accidents legislation but also the extension of those eligible to make a claim. Abolishing claims for bereavement damages 3.9 The Department does not necessarily disagree with the Law Commission s suggestion that the function of bereavement damages is compensatory in nature and that it compensates for grief, sorrow etc, although there is a different school of opinion which argues that bereavement damages are not compensatory in nature and do not fit well with the general theory of damages. 48 Where the Department differs from the Commission and the proposals put forward by the Ministry of Justice is in considering that one can ever adequately compensate for the loss of a relative, however caused. 46 Consultation Paper No 148, paragraph Law Com No 263, paragraph The Ministry of Justice December 2009 Consultation Paper states at page 10, The central purpose of a civil law award of damages is to compensate the claimant for the damage, loss or injury he or she has suffered as a result of another s acts or omissions, and to put the claimant in the same position as he or she would have been but for the injury, loss or damage, so far as this is possible. 22

26 3.10 Would abolishing the right to claim bereavement damages cause any unfairness? As noted above the category of persons who are eligible to claim bereavement damages under the 1977 Order is very narrowly drawn. It encompasses (a) the spouse or civil partner of the deceased, or (b) if the deceased was a minor who was never married or a civil partner, the deceased s parents (if the child was legitimate) or mother (if the deceased was illegitimate). Would the removal of the right to claim bereavement damages result in such persons not being able to claim any compensation from the person who has unlawfully caused the death? Spouses and civil partners 3.11 When considering the issues, it is worth bearing in mind that a spouse or civil partner of the deceased will be eligible to claim dependency damages under Article 3 of the 1977 Order, if in fact he or she is dependent on the deceased; it is likely that the spouse or civil partner will benefit from the estate of the deceased either under the rules of intestate succession or under the deceased s will. The size of the deceased s estate may well be augmented by an award of damages to the estate of the deceased in respect of the wrong which resulted in the death; and it is also likely that the surviving spouse or civil partner will benefit outwith the estate of the deceased, if there is in place an insurance policy on the life of the deceased (which is now the norm where the couple are homeowners with a mortgage). Parents of minor children 3.12 The issue at first sight appears less clear cut in the case of parents of children who may in fact receive no monetary recompense in respect of the unlawful act causing the child s death. First, it is unlikely that the parents of the child would be able to sustain a dependency claim it would be very rare indeed that parents are financially dependent on their children. Second, it is also unlikely that the parents would benefit from any insurance policy on the life of the child. On the other hand, the parents of 23

27 a child who has died as a result of the unlawful acts or omissions of another are likely to benefit from the estate of the deceased child, which may be augmented by any award of damages payable to the estate of the child. It is accepted, however, that awards to the estates of deceased children will rarely be large given the fact that children will not have been in paid employment Set against this, it may be argued, is the fact that other parents who unexpectedly lose their child receive no public token acknowledgement of their grief or sorrow. The Department does not believe that the circumstances of a child s death (whether by accident or unlawful act) result in the grief of the parents being any less The Department does not deny that this is a difficult and emotive issue. For some parents the award of bereavement damages may be the only significant recognition they receive following the death of their child. However, in the broader scheme of things; given the impossibility of setting any monetary value on the grief of a person; given the absence of any monetary award for bereavement in equally tragic circumstances; given the wider and wider range of persons to whom it is proposed such bereavement damages should be made available; given the costs to the insurers of a possibly large number of claims in respect of a single death; and given the availability of other sources of monetary support and recompense to those currently eligible to make a claim for bereavement damages, the Department does not consider the availability of such damages is necessarily justified The Department would, therefore, welcome views on whether it is now right to remove this head of damages, rather than extend the list of people who can claim, as was proposed for England & Wales. 24

28 Question 7 Do you consider that bereavement damages should be abolished, without replacement? Retaining bereavement damages 3.16 Although the Department is seeking views on the abolition of bereavement damages in Northern Ireland, it is mindful that the direction of travel in England & Wales is the other way. Following its 2007 consultation, when the overwhelming majority of respondents favoured retaining bereavement damages, the previous UK Government came to the conclusion that they should continue to be available under the 1976 Act The 2009 draft Bill was subject to pre-legislative scrutiny by the House of Commons Justice Select Committee. 49 That Committee also accepted that bereavement damages should continue to be available and that eligibility should be extended. The Committee adopted an approach falling between the limited extension of eligibility proposed by Ministry of Justice in the 2009 draft Bill, and the broader extension of eligibility recommended by the Law Commission in its 1999 Report The 2009 draft Bill provided for the extension of the statutory list of eligible claimants. In addition to the spouse or civil partner of the deceased and the parents of unmarried minor children, who are eligible claimants at present, the statutory list was to be extended to include: (a) parents of a minor child in relation to whom they have parental responsibility; 50 (b) minor children of the deceased (including adoptive children); and 49 Justice Select Committee, Draft Civil Law Reform Bill: pre-legislative scrutiny ( HC 300-1) March Although the Ministry of Justice 2009 Papers are silent on the issue, the passing of the Human Fertilisation and Embryology Act 2008 means that both the civil partner parents of a minor child are eligible to claim bereavement damages under the current law. Under the Ministry of Justice proposals, a 2 nd female parent not in a civil partnership with the deceased child s mother would also be an eligible claimant if she had parental responsibility for the deceased child. 25

29 (c) cohabitants who have lived with the deceased as husband and wife or civil partners of each other for not less than 2 years immediately prior to the accident. Parents 3.19 At present Article 3A(2)(b) of the 1977 Order allows claims for bereavement damages by parents in respect of their minor children who were never married or a civil partner. The law currently distinguishes between the parents of a legitimate child and parents of an illegitimate child. 51 This distinction is no longer appropriate in the modern world and the Department will remove these obsolete references, should new legislation be introduced. Within the present family context the key trigger to recognition of the parental relationship is whether a parent has parental responsibility for a child. Given that the law no longer treats children differently according to the marital or civil partnership status of their parents, it seems appropriate in this instance to extend this to the treatment of parents of children (whether they are married or in a civil partnership). This would mean that an unmarried father or a second female parent with parental responsibility would be placed in the same position as other parents in respect of eligibility to claim bereavement damages The Law Commission had originally recommended that parents should be eligible to claim bereavement damages even in respect of their adult children, and this was supported by the Justice Select Committee. 52 In order not to extend unduly the availability of such damages, the previous UK Government rejected the argument that parents should be awarded bereavement damages irrespective of the age of the deceased child. The Department endorses that approach, which seeks to limit the availability of such damages. 51 By contrast, in respect of claims for dependency damages under Article 3 of the 1977 Order, an illegitimate person shall be treated as the legitimate child of his mother and reputed father (see Article 2(3) of the 1977 Order). 52 Justice Select Committee Report (2010), paragraph

30 Question 8 Do you agree that, if bereavement damages are to be retained in the law of Northern Ireland, the list of those eligible to claim such damages should be extended to include any parent of a minor child in relation to whom he or she has parental responsibility? As at present under Article 3A(4) of the 1977 Order the Department would envisage that where any damages are awarded for the benefit of the parents of the deceased child, the sum awarded would be divided equally between them. Cohabitants 3.21 The Department would not be minded to extend the list of eligible claimants at this stage to include cohabitants (whether opposite-sex or same-sex). The law on the rights and responsibilities of cohabitants has to date developed piecemeal. This has led to an unsatisfactory state of affairs whereby in some areas of law cohabitants have, by and large, equivalent rights to those of spouses and civil partners, and in other areas of law their existence is not recognised at all. 53 The Department believes that no further piecemeal extensions of the rights of cohabitants should be made until a thorough review of the current law has been conducted and proposals for change subjected to public consultation. Question 9 Do you agree that cohabitants should remain ineligible to claim bereavement damages, pending a future review of the law relating to cohabitation? Children of the deceased 3.22 The Department is also not persuaded that the minor children of the deceased should be eligible to claim bereavement damages. The Law Commission had originally recommended that both minor and adult 53 For example cohabitants are excluded from the intestacy rules under the Administration of Estates Act (NI)

31 children of the deceased should be able to make a claim for bereavement damages. 54 The Ministry of Justice rejected the idea of allowing adult children to make a claim as this would amount to an unacceptable widening of eligible claimants. Instead, the previous UK Government proposed allowing minor children of the deceased to make a claim for bereavement damages The Department is not persuaded that this extension of eligibility should be contemplated. As Lord Hailsham of Saint Mareylebone noted in the 2 nd Reading of the Administration of Justice Bill (which introduced bereavement damages): [m]y present view is that it should not be available to an unmarried minor child in respect of the loss of a parent because,. such a child is already likely to receive substantial dependency damages in any event. Bereavement damages can add little or nothing to that.. Question 10 Do you agree that minor children of the deceased should remain ineligible to claim bereavement damages? Other groups 3.24 The Law Commission for England & Wales had recommended extending eligibility even further to include siblings and engaged couples. 55 The previous UK Government rejected this, and, as stated above, considered, but rejected, allowing parents to claim in respect of their deceased adult children or claims in respect of step-parents and parents in respect of their adult children The decision as to which relatives or close associates should be able to make a claim for bereavement damages highlights for the Department one of the fundamental problems with these types of claims. 54 This recommendation was endorsed by the Justice Select Committee in its 2010 Report on the 2009 draft Bill. 55 Law Com 263, paragraph

32 How does the law in a fixed set of rules make provision capable of accommodating the grief of every person who might feel entitled to claim bereavement damages, or might feel he or she was closer to the deceased than one of those on the statutory list of eligible claimants? For example, the minor child of divorced parents might not have seen his or her father since early childhood, yet would be entitled to claim bereavement damages in respect of that father s death under the proposals put forward in England & Wales. On the other hand, the twin brother with whom the child s father had a very close continuing relationship would not be entitled to claim bereavement damages under the 2009 proposals It is the Department s view that any extension of eligibility of bereavement damages should be as limited as is practical, bearing in mind the need to comply with human rights and equality norms. For practical purposes the Department would not wish to see eligibility for bereavement damages extended beyond those proposed for England & Wales. Question 11 Do you agree that, if bereavement damages are to continue to be available, the list of those eligible to make a claim should not be extended to include (a) step-parents in respect of their step-children, (b) siblings of the deceased, (c) adult children of the deceased, (d) engaged couples and (e) parents in respect of their deceased adult children. Amount of bereavement damages 3.27 As noted in paragraph 3.2 above, the amount of bereavement damages is now set at 11,800 in respect of each death. This amount is fixed in Northern Ireland by the Department of Justice and is not discussed further in this Paper. 29

33 PART FOUR: DAMAGES FOR GRATUITOUS CARE Introduction 4.1 In the context of damages recoverable in personal injury cases and in claims under the fatal accidents legislation, a complex and difficult issue is the extent to which damages are recoverable for collateral benefits, including gratuitous care A collateral benefit is a payment or benefit in kind (other than the damages being claimed for the tort committed) which the victim of the tort would not have received but for the tort. There are numerous different types of collateral benefits including voluntary and charitable payments; benefits in kind such as gratuitous care by a friend or relative, local authority care and ancillary services or NHS treatment; pensions; accident insurance; sick pay; statutory compensation schemes and social security benefits. 4.3 The issue of collateral benefits in relation to the assessment of damages has been treated by the courts in different ways for many years. For example, in the case of Parry v Cleaver 57 in 1970 Lord Reid stated that the common law has always treated the issue of collateral benefits as one depending on justice, reasonableness and public policy. Whereas in the case of Hussain v New Taplow Paper Mills Ltd 58 in 1988, Lord Bridge stated that the only loss which should be recoverable by a claimant for damages should be the net loss. This case established that, when considering collateral benefits, the starting point should be that the defendant s liability to pay damages should be reduced by the value of 56 The first reported case of damages being recoverable for what is now known as gratuitous care would appear to be Roach v Yates [1938] 1KB. In that case the court awarded damages to cover the cost of care provided voluntarily by the claimant s wife and sister-in-law who had given up paid employment to nurse him. See Clerk & Lindsell on Torts, nineteenth edition (2006), paragraph [1970] AC [1988] AC

34 any collateral benefits due to the claimant as a result of the accident. In practice there have been many exceptions to this rule. 4.4 The Law Commission considered the area of collateral benefits in its Report Damages for Personal Injury: Medical, Nursing and Other Expenses; Collateral Benefits. 59 Its earlier Consultation Paper 60 had considered six possible options for reforming the law in relation to the treatment of collateral benefits, four of which would have increased the categories of collateral benefits to be deducted when assessing damages. The fifth option proposed that all collateral benefits should be disregarded in the assessment of damages, while the final and sixth option proposed that there should be no change to the law in this area. 4.5 The Law Commission s aim was to introduce a consistency of approach between the two regimes: the assessment of collateral benefits, especially gratuitous care, in personal injury cases should be the same as the assessment of collateral benefits in claims under fatal accidents legislation. This would be achieved by listing in legislation charity, insurance, survivors pensions and inheritance as non-deductible collateral benefits. 61 All other collateral benefits could be taken into account in the assessment of damages in order to avoid offending against the principle that the victim should not be doubly compensated for the same loss by (a) the tortfeasor in the award of damages for a particular loss suffered, and (b) the provision by others of collateral benefits to meet the same loss as the award of damages. 4.6 While the Law Commission s ultimate recommendation was that there should be no general reform of the law, it hoped that the issues 59 Law Com No 262 (1999). 60 Law Commission Consultation Paper No 147 (1997), Damages for Personal Injury: Collateral Benefits. 61 This would also involve repeal of section 4(1) of the Fatal Accidents Act The equivalent provision in Northern Ireland is Article 6 of the Fatal Accidents (NI) Order Both provisions provide: In assessing damages in respect of a person s death in an action under this [Act][Order], benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded. 31

35 raised in its Report would assist (a) the courts in the development of the common law, and (b) the Government should it decide to give further consideration to reform of this area. The one area on which the Commission did recommend specific legislative reform was in connection with gratuitous care. Gratuitous care 4.7 Gratuitous care is essentially care which is provided to a claimant by a friend or relative. 62 The Law Commission identified the policy underlying an award of damages for gratuitous care in terms of the recognition that it would often be in the long-term best interests of the injured claimant to have these services provided by a relative or friend. If an award of damages for gratuitous care were not available, this would encourage the claimant to enter into possibly sham contractual arrangements with family members for the provision of care, or forego completely the option of care by a family member in favour of commercially provided care It is already the law that damages for gratuitous care are recoverable in personal injury cases. 64 The leading case is the House of Lords decision in Hunt v Severs, 65 a case arising in the context of personal injury litigation, rather than a claim under the fatal accidents legislation. In this case the House of Lords held that, while a claimant could recover damages for gratuitous care given by another, the claimant was obliged to hold those funds in trust for the provider of the care. In the same case their Lordships also held that a claimant should not be able to claim for past gratuitous care (i.e. care provided from the date of the accident to the date of trial) provided by the tortfeasor (though a claim would be allowed 62 The New Shorter Oxford English Dictionary (4 th edition 1993) defines gratuitous as (1) given or obtained for nothing; not earned or paid for; free and (2) uncalled for; unwarranted; unjustifiable; done or acting without a good or assignable reason; motiveless. 63 Law Com No 263, paragraph Damages for gratuitous care is generally assessed at two thirds of the market rate for comparable care; see McDaid v Howlett s and Port Lympne Estates Ltd (17 May 1996, unreported). 65 [1994] 2 AC

36 for future gratuitous care to be provided to the injured party by the tortfeasor). 4.9 As early as 1999 the Law Commission for England & Wales recommended that the trust approach in this instance was inappropriate and cumbersome, and that a simpler way could be found of ensuring that the damages recovered by the claimant for gratuitous care would in fact reach the person providing the care. The Commission s suggested solution was to impose upon the claimant a personal obligation to account to the carer for the money paid in damages. 66 The Commission also recommended that Hunt v Severs be reversed so that damages could be recoverable for past and future gratuitous care, even when such care was provided by the tortfeasor or when the provider of care in a claim for dependency under fatal accidents legislation was the tortfeasor The issue for consideration here encompasses a number of subsidiary matters including: (a) whether damages can be recovered for gratuitous care provided to the injured party in an action for personal injury and whether this should include recoverability of damages for pre-trial and future gratuitous care provided by the tortfeasor; (b) what damages are recoverable for gratuitous care provided by the deceased and which, because of the death, are now provided by another person to the claimant dependent of the deceased and does it matter that the pre-trial and future gratuitous care to the dependent is provided by the tortfeasor; (c) how should the person receiving the damages account for it to the person who is providing the gratuitous care; and (d) should the person providing the gratuitous care have a right of any kind to claim the damages awarded for gratuitous care? 66 The Commission had rejected the creation of a statutory recoupment right for providers of collateral benefits, including gratuitous care: see Law Com No 263, Claims for Wrongful Death (1999), paragraphs in the context of claims for wrongful death; and Law Com No 262, Damages for Personal Injury: Medical, Legal, Nursing and Other Expenses; Collateral Benefits (1999), paragraphs in the context of damages for personal injury. 33

37 England & Wales proposals on gratuitous care 4.11 As early as 2007 the Ministry of Justice accepted the Law Commission s primary recommendation that there should be no general reform of the law on collateral benefits at this stage. Consequently, the 2009 draft Bill contains no relevant proposals The previous UK Government did accept, by and large, the Law Commission s recommendations for reform of the law in relation to gratuitous care in the context of actions for personal injury and in actions under fatal accidents legislation. Addressing this issue in its July 2009 Response to its earlier 2007 Government Consultation Paper, the Ministry of Justice said: The consultation paper proposed that the approach established by the case of Hunt v Severs of requiring claimants to place damages for gratuitous care in trust for the carer should be replaced by a personal obligation to account; that this should apply to damages for future as well as past gratuitous care; that it should apply regardless of the identity of the carer, but that damages should not be awarded for past gratuitous care provided by the tortfeasor; and that the FAA should be amended to allow damages to be awarded for services gratuitously provided to a dependant of the deceased. A substantial majority of responses supported a personal obligation to account, and that this should extend to future gratuitous care. Concerns primarily focused around the possibility of double recovery and the view was expressed that a legal obligation to compensate the carer would be more appropriate as otherwise the claimant might not in fact do so. However, the Government considers that a legal obligation would be too rigid, and that a personal obligation would give greater flexibility, for example to enable the claimant to pay for future gratuitous services only when and to the extent that they are actually provided. As noted in the consultation paper, a personal obligation for future gratuitous care would fit well with periodical payments orders in cases of significant future loss. As one response acknowledged, some uncertainty about future arrangements is inherent in lump sum compensation for future loss. However, on balance, the Government continues to take the view that a personal obligation should apply to damages for both past and future gratuitous care. 34

38 A majority of responses also supported the view that the personal obligation should generally apply regardless of the identity of the carer, but that damages should not be awarded for past gratuitous care provided by the tortfeasor. Opposition generally focused on the latter issue, with some taking the view that neither past nor future care should be recoverable. However, as some responses pointed out, denying payments for future gratuitous care to a caring tortfeasor could mean the claimant having to get commercial care, and the Government does not consider that this would be appropriate. As certain responses pointed out, payment of past gratuitous care by the tortfeasor would also appear inappropriate, as the money would simply be returned to the tortfeasor. A number of suggestions were made as to particular circumstances in which the payment of past gratuitous care to the tortfeasor would be appropriate. However, it would be difficult to frame any legislative provision which would effectively differentiate between situations where awards for past gratuitous care to a tortfeasor might or might not be appropriate. In view of the fact that such claims are not currently possible, and in light of the general principle set out in the consultation paper that legislation and procedural change will only be appropriate where there are positive identifiable benefits, on balance the Government considers that damages should continue not to be awarded for past gratuitous care provided by the tortfeasor. A clear majority of responses agreed with the proposal that the FAA should be amended to allow damages to be awarded for services gratuitously provided to a dependant of the deceased, which would bring the position under the FAA into line with that in personal injury cases. The Government shares the view expressed by one respondent that there is no reason in principle for this issue to be treated differently merely because the claim arose from a fatal accident, and does not consider that a statutory provision on this point should create confusion in relation to the common law The outcome of these decisions can be found in Clauses 7 and 8 of the 2009 draft Bill, which was published by the Ministry of Justice for prelegislative scrutiny. Clause 7 is a free-standing provision setting out the proposed new law on damages for gratuitous services on a claim for damages for personal injury. Clause 8 provides for the amendment of the 35

39 1976 Act, inserting a new section 3A dealing with damages for gratuitous services provided by the deceased. For convenience these are set out below. Clause 7 Damages for gratuitous care (1) Subsection (2) applies if, on a claim for damages for personal injury, a court awards damages to the injured person in respect of gratuitous provision of services to that person. (2) The injured person must account to- (a) such persons as provided the services before the date of the award, and (b) such persons as provided the services on or after that date. (3) A court must not refuse to award damages in respect of gratuitous provision of services merely because the person providing the services is the defendant. (4) But a court may not award damages in respect of a gratuitous provision of services by the defendant to the injured person for any period before the date of the award (and accordingly subsection (2)(a) does not apply). (5) In this section- (a) personal injury includes any disease and any impairment of a person s physical or mental condition; (b) the references to providing services include, in particular, a reference to- (i) providing the injured person with personal care; (ii) carrying out tasks as part of running or maintaining the home or supporting the injured person s domestic or family life; (c) services are provided gratuitously if the person making the provision does so without having any legally enforceable right to payment in respect of the provision. Clause 8 Award of damages under Fatal Accidents Act 1976 (1) The Fatal Accidents Act 1976 is amended as follows. (2) After section 3 insert- 3A Damages for gratuitous care provided by the deceased (1) A court assessing an injury to a dependant for the purposes of section 3(1) may treat that injury as including the loss to a person of gratuitously providing services to the dependant which the deceased would have provided but for the death. (2) If the dependant recovers damages for the loss referred to in subsection (1), the dependant must account to- 36

40 (a) such persons as provided the services before the date of the award, and (b) such persons as provided the services on or after that date. (3) The court must not refuse to exercise the power in subsection (1) merely because the person providing the services is the defendant. (4) But the court may not award damages in respect of a gratuitous provision of services by the defendant to the dependant for any period before the date of the award (and accordingly subsection (2)(a) does not apply). (5) In subsection (2) the references to the dependant include a reference to the dependant s personal representatives. (6) In this subsection the references to gratuitously providing services are to be construed in accordance with section 7 of the Civil Law Reform Act As was noted in Part One, 67 the Department believes that the assessment of damages is one of the areas where there are good reasons for the law in this jurisdiction keeping in step with the law as it develops in England & Wales. The extent to which the provision of collateral benefits should influence the assessment of damages in personal injury cases is not governed by statute but has been left to the courts to develop as a matter of common law. The approach taken by the courts in Northern Ireland follows that of the courts in England & Wales Similarly in the case of claims under the fatal accidents legislation, the statute law is the same in both jurisdictions as regards the extent to which the accrual of benefits should be taken into account in the assessment of damages payable. Both section 4(1) of the 1976 Act and Article 6(1) of the 1977 Order provide: In assessing damages in respect of a person s death in an action under this [Act][Order], benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded. 67 Paragraph

41 4.16 The Ministry of Justice s 2009 draft Bill allowed for section 4(1) of the 1976 Act to remain in place, reflecting the fact that the Ministry had rejected the Law Commission s recommendation to replace that section with a statutory list of non-deductible collateral benefits The Justice Select Committee made no comment on the approach taken by the 2009 draft Bill on the rejection of the Law Commission s recommendation in its pre-legislative scrutiny Report. Question 12 Do you agree that Article 6(1) of the Fatal Accidents (Northern Ireland) Order 1977 should remain in place? Accounting for damages for gratuitous care Personal obligation to account 4.18 There would appear to be a large degree of consensus that the imposition on a claimant of an obligation to hold damages on trust for the provider of gratuitous care or services is cumbersome, and that the House of Lords had not appreciated or contemplated the consequences of their ruling in Hunt v Severs. 68 The Law Commission recommended that this trust approach be replaced by a personal obligation placed on the recipient of damages to account to the provider of gratuitous care. This personal obligation to account would apply to a claimant in an action for personal injuries and in actions raised under fatal accidents legislation. 69 The 2009 draft Bill reflected this recommendation. Question 13 Do you agree that a claimant should personally account to the carer for the damages received for gratuitous care? 68 [1994] 2 AC Scots law has for a long time adopted the approach of imposing a personal obligation to account for past or pre-trial gratuitous care; see Administration of Justice Act 1982, section 8(2). 38

42 Past and/or future care 4.19 The Law Commission had recommended that a claimant s obligation to account to the carer for the money paid in damages for gratuitous care should apply only to the damages received for care provided prior to the date of the trial. The obligation to account should not apply to damages paid for future gratuitous care. The Commission made this distinction on the basis that the future care requirements of the claimant might change and while it was envisaged at the date of trial that future care would be gratuitous, it may well be that circumstances change and the claimant would need to pay for commercial care The previous UK Government disagreed with this approach, and the 2009 draft Bill provided that the new personal obligation to account to the carer for gratuitous care should apply to the damages awarded for both past and future care (which is the current law under Hunt v Severs) The Justice Select Committee preferred the reasoning of the Law Commission on this issue, agreeing that imposing an obligation on the claimant to the carer to account for damages awarded for future care would fetter the injured party s ability to obtain the most appropriate care. 70 Given the Select Committee s views on this issue the previous UK Government had agreed to reflect further on the question of accounting for future gratuitous care. Question 14 Do you agree that a claimant s obligation to account to the carer for the damages for gratuitous care should apply only to the damages received for care provided prior to the date of the trial? Gratuitous care provided by the defendant tortfeasor 4.22 One of the issues which vexed the Justice Select Committee s prelegislative scrutiny of the 2009 draft Bill was the extent to which damages 70 Justice Select Committee Report (2010), paragraph

43 should be recoverable for gratuitous care provided by the defendant both before the date of trial and in the future. The House of Lords in Hunt v Severs had held that a claimant could not claim damages for pre-trial gratuitous care provided by the tortfeasor as these damages would be paid back to the defendant. On this issue the Law Commission and the previous UK Government took opposing positions The Law Commission criticised the ruling in Hunt v Severs and recommended its reversal. A claimant should be able to claim damages for pre-trial and future gratuitous care provided, or to be provided, by the defendant tortfeasor. It argued that the current rule encourages the claimant to make arrangements for the provision of commercial care, rather than care provided freely by the defendant which may, in many cases, be more appropriate to the claimant s needs than care provided commercially The previous UK Government disagreed. It argued that it would be wrong in principle and would offend against public policy to award damages for past (pre-trial) gratuitous care provided by the defendant tortfeasor. It did accept, however, that the claimant should be able claim damages for gratuitous care to be provided by the defendant in the future. The 2009 draft Bill sought to give effect to these conclusions in Clause 7 (for personal injury claims) and Clause 8 (for claims under Fatal Accidents legislation), which are set out at paragraph 4.13 above A number of those who gave evidence to the Justice Select Committee were unpersuaded that there was any merit in this distinction between pre-trial and future gratuitous care. 71 The Justice Select Committee agreed, noting that the then UK Government s approach (supported primarily by the insurance industry) was to mischaracterise damages recoverable for pre-trial gratuitous care provided by the defendant (and which would be returned to that person) as somehow a 71 For example the Law Society for England & Wales. 40

44 windfall for the person held liable for the injury. It was rather, compensation to the defendant tortfeasor for his or her loss resulting from the decision to provide gratuitous care to the victim. 72 The Committee s concern over this issue is best highlighted by quoting in full its conclusions. We believe the Government s view of an award of damages for gratuitous care is overly legalistic and fails to recognise the practical realities. It makes a fundamental difference to both victim and carer if an insurance company is responsible for paying damages rather than an individual defendant. In practical terms a defendant is highly unlikely to appeal an award of damages for past gratuitous care whereas an insurance company will seek to limit its liability. A defendant who provides gratuitous care may well be in the same household as the claimant who, while benefitting from the gratuitous care, will be impoverished by any loss of earnings the dependant has undergone. We urge the Government to take a realistic and practical approach to this issue. 73 Question 15 Do you agree that damages should be recoverable for gratuitous care provided by the defendant tortfeasor both before the date of trial and in the future? Damages for gratuitous care provided by the deceased 4.26 The final issue which needs to be considered is whether a claimant in a fatal accidents case can claim damages for pre-trial and future gratuitous care provided by a third party. It is important to understand what such damages are intended to cover and why the issue of their recoverability arises at all. The head of damages in this instance is to cover the gratuitous care which would have been provided by the deceased victim of the tort/wrong, but which now is provided to the deceased s dependant claimant by someone else. The loss being compensated is not one suffered by the dependant claimant, but rather 72 Justice Select Committee Report (2010), paragraph Justice Select Committee Report (2010), paragraph

45 the third party carer who is providing gratuitous services to the claimant dependant which was previously provided by the deceased and which, it is reasonable to assume, the deceased would have continued to provide to the dependant (but for his or her death) The Law Commission recommended that such damages should be recoverable, as is the law under Hunt v Severs, and that the dependant claimant should be under a personal obligation to account to the third party carer for pre-trial gratuitous care provided by him or her. The obligation to account should not apply to future gratuitous care provided by the third party carer to the dependant claimant On this issue too, the previous UK Government thought that the obligation to account should apply to both past and future gratuitous care provided to the dependant claimant. It also drew again a distinction between recoverability of damages for pre-trial and future gratuitous care when the third party carer providing services in place of the deceased is the tortfeasor Again, the Justice Select Committee favoured the original Law Commission recommendations: We endorse the Ministry of Justice s decision to allow claimants in a dependency damages claim under the Fatal Accidents Act 1976 to recover damages for gratuitous care that had been provided by the deceased. If gratuitous services were provided by the deceased before his or her death then it seems reasonable to expect that they would have continued. We again reject the proposal that only future care be recoverable where the past care has been provided by the defendant. We acknowledge that a negligent party should not in general benefit from his or her wrong doing but repeat that, not only is there no true benefit to the tortfeasor in these circumstances, but also that Parliament should do its utmost to encourage the 42

46 provision of gratuitous services by the most suitable person. 74 Question 16 Do you agree that a claimant in a fatal accidents case should be able to claim damages for gratuitous care provided by a third party and, if so, should the damages be recoverable for pre-trial and future gratuitous care when the third party carer providing services in place of the deceased is the tortfeasor; and the claimant s obligation to account for the damages for gratuitous care apply only to the damages received for care provided prior to the date of the trial? Conclusion 4.30 There is one final point of principle on which the Department would welcome views and that is the degree to which our law should continue to reflect the law in England and Wales. As has been stated above, the law in Northern Ireland with regard to the recoverability of damages has kept step with the law in England & Wales. Clearly, any departure in the future could give rise to an unfortunate divergence between the two jurisdictions in an area of the common law. This, in turn, could give rise to concerns about the applicability of the reasoning employed by the courts in England & Wales in cases arising in Northern Ireland, and the precedent value of leading authorities from the superior courts in England & Wales could be greatly diminished. However, consultees might feel that it is now appropriate for Northern Ireland to set aside the principle of parity, with a view to plotting its own course. 74 Justice Select Committee Report (2010), paragraphs 148 and

47 Question 17 Do you agree that the law in Northern Ireland with regard to the recoverability of damages should, in principle, continue to mirror the law of England & Wales? 44

48 ANNEX A REPUBLIC OF IRELAND CIVIL LIABILITY ACT 1961 (as amended) The law in the Republic of Ireland is similar to that in Northern Ireland, in that it allows for a claim to be made by a dependant following death by a wrongful act. The relevant law is set out in Part IV of the Civil Liability Act 1961, as amended. Section 48 of the 1961 Act establishes the right of a dependant to bring an action for damages against the person who would, but for the deceased s death, have been liable. An action under section 48 must be brought within 2 years of the death or the date on which the death became known to the person for whose benefit the action is brought. Section 47 of the 1961 Act defines a dependant as a spouse/ex-spouse; a civil partner/ex-civil partner; a parent (this includes someone in loco parentis) ; a grandparent; a step-parent; a child (this includes a person who has been adopted); a grandchild; a step-child; a brother; a sister; a half-brother; a half-sister or a person who was not married to or a civil partner of the deceased but who, until the date of the deceased s death, had been living with the deceased as the deceased s cohabitant for a continuous period of not less than three years. The action may be brought by the personal representative of the deceased or, if no action is forthcoming or there is no personal representative, by all or any of the dependants. However, regardless of who brings the action, it is deemed to be for the benefit of all of the dependants (as per section 48(4)). Compensation is assessed under three main headings: 1. Emotional/mental distress; 2. Loss of dependency; and 45

49 3. Special damages arising from the death (eg. funeral expenses). For the most part, the courts have a measure of freedom when assessing an individual fatal injury claim and determining the appropriate level of compensation for the family of the deceased. However, section 49 of the 1961 Act imposes a cap on the level of compensation for emotional distress, which is currently set at 25, That amount will fall to be divided equally between all of the listed dependents in the action. This means that, ultimately, each individual may only receive a small amount for that particular head of damages. The cap on the level of compensation can be adjusted by an Order made by the Minister for Equality and Law Reform. However, even so, it would appear that this aspect of the 1961 Act has attracted criticism from both the legal profession and the High Court. In 2008 a Private Member s Bill, which provided for the repeal of section 49(1)(b) of the 1961 Act, was introduced in the Dail. However, the Bill, which was entitled The Civil Liability (Amendment) Bill 2008, lapsed. There is a further restriction with regard to damages for emotional/mental distress, in that section 49A of the 1961 Act precludes such an award to an ex-spouse. If the action is brought by a cohabitant and s/he had no enforceable right to financial maintenance by the deceased, the court must take that fact into account, together with any other relevant matter, when determining the damages to be awarded. When assessing damages, no account will be taken of any sum payable under a contract of insurance or any gratuity, pension or benefit payable in consequence of the death. 75 Certain charitable gifts are also disregarded. 75 A grant in respect of funeral expenses may be taken into account 46

50 ANNEX B The consultation criteria The six consultation criteria are as follows: 1. Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy. 2. Be clear about what your proposals are, who may be affected, what questions are being asked and the time scale for responses. 3. Ensure that your consultation is clear, concise and widely accessible. 4. Give feedback regarding the responses received and how the consultation process influenced the policy. 5. Monitor your department s effectiveness at consultation, including through the use of a designated consultation co-ordinator. 6. Ensure your consultation follows better regulation best practice, including carrying out an Impact Assessment if appropriate. These criteria must be reproduced within all consultation documents. 47

51 ANNEX C RESPONDENT FORM 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? Yes No Don t know Please give reasons for your answer 48

52 Question 2 Do you agree that the new residual category of dependant should include those whose dependency would have begun after the death? Yes No Don t know Please give reasons for your answer 49

53 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? Yes No Don t know Please give reasons for your answer 50

54 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? Yes No Don t know Please give reasons for your answer 51

55 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? Yes No Don t know Please give reasons for your answer 52

56 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 (c) the 1977 Order should be amended to provide that the courts may take into account the surviving parent s new relationship in assessing damages payable to a dependant child? Please give reasons for your answers 53

57 Question 7 Do you consider that bereavement damages should be abolished, without replacement? Yes No Don t know Please give reasons for your answer 54

58 Question 8 Do you agree that, if bereavement damages are to be retained in the law of Northern Ireland, the list of those eligible to claim such damages should be extended to include any parent of a minor child in relation to whom he or she has parental responsibility? Yes No Don t know Please give reasons for your answer 55

59 Question 9 Do you agree that cohabitants should remain ineligible to claim bereavement damages, pending a future review of the law relating to cohabitation? Yes No Don t know Please give reasons for your answer 56

60 Question 10 Do you agree that minor children of the deceased should remain ineligible to claim bereavement damages? Yes No Don t know Please give reasons for your answer 57

61 Question 11 Do you agree that if bereavement damages are to continue to be available, the list of those eligible to make a claim should not be extended to include (a) step-parents in respect of their stepchildren, (b) siblings of the deceased, (c) adult children of the deceased, (d) engaged couples and (e) parents in respect of their deceased adult children. Please give reasons for your answer 58

62 Question 12 Do you agree that Article 6(1) of the Fatal Accidents (Northern Ireland) Order 1977 should remain in place? Yes No Don t know Please give reasons for your answer 59

63 Question Do you consultees agree that agree a claimant that it would should be personally sensible for account Northern to Ireland the carer to for the follow damages that approach? received for gratuitous care? Yes No Don t know Please give reasons for your answer 60

64 Question 14 Do you agree that a claimant s obligation to account to the carer for the damages for gratuitous care should apply only to the damages received for care provided prior to the date of the trial? Yes No Don t know Please give reasons for your answer 61

65 Question 15 Do you agree that damages should be recoverable for gratuitous care provided by the defendant tortfeasor both before the date of trial and in the future? Yes No Don t know Please give reasons for your answer 62

66 Question 16 Do you agree that a claimant in a fatal accidents case should be able to claim damages for gratuitous care provided by a third party and, if so, should the damages be recoverable for pre-trial and future gratuitous care when the third party carer providing services in place of the deceased is the tortfeasor; and the claimant s obligation to account for the damages for gratuitous care apply only to the damages received for care provided prior to the date of the trial? Please give reasons for your answer. 63

67 Question 17 Do you agree that the law in Northern Ireland with regard to the recoverability of damages should, in principle, continue to mirror the law of England & Wales? Yes No Don t know Please give reasons for your answer 64

68 THANK YOU FOR PARTICIPATING IN THIS CONSULTATION EXERCISE. About you Please use this section to tell us about you Full name Job title or capacity in which you are responding to this consultation exercise (e.g. member of the public etc.) Date Company name/organisation (if applicable): Address Postcode Representative groups If you are a representative of a group, please tell us the name of the group and give a summary of the people or organisations that you represent. Contact details/how to respond Please send your response by 18 July 2012 to: Civil Law Reform Division 1st Floor Victoria Hall May Street Belfast BT1 4NL Tel: Fax: [email protected] Further hard copies of this consultation paper can be obtained from this address. It is also available on-line at Alternative versions of this publication can be requested from the above address. 65

69 Publication of response A paper summarising the responses to this consultation will be published later this year. The response paper will be available on-line at and may be accompanied by the responses which we receive. This means your response may be disclosed. Before you submit your response, please read the paragraphs below on confidentiality of consultations. They will give you guidance on the legal position about any information given by you in response to this consultation. Confidentiality Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004). If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department. The Department will process your personal data in accordance with the DPA and, in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties. The Code of Practice on the FOIA provides that: Departments should only accept information from third parties in confidence if it is necessary to obtain information in connection with the exercise of any of the Department's functions and it would not otherwise be provided. Departments should not agree to hold information received from third parties "in confidence" which is not confidential in nature. Acceptance by Departments of confidentiality provisions must be for good reasons, capable of being justified to the lnformation Commissioner. 66

70 For further information about confidentiality of responses please contact the Information Commissioner s Office or see its web site at: 67

71 Advice NI ANNEX D CONSULTEES Association of British Insurers Association of Personal Injury Lawyers Association of Independent Advice Centres Attorney General AXA Insurance Bar Council Confederation of British Industry Construction Employers Federation District Councils Education and Library Boards Engineering Employers Federation Equality Commission of Northern Ireland FDA Federation of Small Businesses GMB Government Departments Health and Social Services Trusts Health and Social Services Boards Health and Social Services Councils Her Majesty s Council of County Court Judges Housing Executive Irish Congress of Trade Unions Law Centre 68

72 Law Society of Northern Ireland Local Political Parties Lord Chief Justice of Northern Ireland Members of the Legislative Assembly (MLAs) NIPSA NICVA Northern Ireland Court Service Northern Ireland Human Rights Commission Northern Ireland Law Commission Northern Ireland Legal Services Commission Northern Ireland Members of Parliament (MPs) Northern Ireland members of the House of Lords Northern Ireland Members of the European Parliament (MEPS) Queen s University Belfast Solicitors Associations throughout Northern Ireland Transport and General Workers Union UNISON UNITE University of Ulster 69