Negligence and Damages Bill – A step in the right direction?

A Private member’s Bill, The Negligence and Damages Bill, has been put forward to the House of Commons and seeks to address the current issues and shortfalls with Bereavement Damages and Psychiatric injuries for secondary victims.

The current law on psychiatric harm is based on case law and victims have found it has fallen short on many occasions, such as the families of the victims of the Hillsborough disaster. As it stands a claim for psychiatric injury arising from witnessing a loved ones injury or death can only be made by a person with a close tie of love and affection. The only relationships assumed to have this tie are those between a parent and a child, spouses or fiancés. Anyone else seeking to make such a claim has the burden put upon them to prove this tie existed.

Injured parties would still have to show that they have suffered a recognised psychiatric injury but the pool of potential claimants would be significantly increased to include those such as friends and colleagues of the injured party who would no longer have to prove the tie of love and affection. The new Bill seeks to abolish the need for a Claimant to have been shocked by the incident, thus potentially including those who develop a psychiatric injury having watched a loved one die slowly as a result of medical negligence. Additionally, it would end the need for a Claimant to have been sufficiently close in time and space to the incident. This would mean that those who arrive at hospital to see a loved one following a serious accident or find out about a death over the phone, could potentially bring a claim though they did not witness the incident itself.

For those who unfortunately loose a loved one as a result of a negligent act a claim can be made against the Defendant for the Statutory Bereavement Award. In England and Wales this is set at £12,980 and can only be claimed by: the spouse or civil partner of the Deceased or by the parents of a Deceased minor. The child of a Deceased parent would therefore be unable to make a claim for this. The modern family structure has changed in recent years however thus far the law in England and Wales has been slow to reflect this. Judges in Scotland already have the power to decide on the level of bereavement damages and the parties to which these can be awarded.

The proposed Bill would do away with the set award instead giving power to the Court to decide on the sum to be awarded, based on a number of prescribed factors. These would include the distress and anxiety endured by the relative in contemplation of suffering before the loved ones death; the grief and sorrow caused by the death and; the loss of non-pecuniary benefits. The new Bill would also significantly increase the number of potential Claimants, so that this could include children over 18 and siblings as well as step children, fiancés and ex-partners. Further progress would have been to expand the scope of the Bereavement award so that parents of stillborn infants, whose death has occurred by virtue of negligence, would be able to bring a claim under this provision. However, this is something that we can perhaps hope for in the future.

The new Bill shows a greater understanding of the affect psychiatric injuries or bereavements can have on loved ones and a better understanding of the changing nature of relationships and family structures. The Bill has gained support from APIL (The Association of Injury Lawyers) and is a step in the right direction to addressing the need for loved ones to get their lives back on track.