Compensating for fatal accidents and for indirect mental illness

If you needed a reminder of the controversy associated with different levels of fatal accident damages across the constituent jurisdictions of the UK, The Times’ daily legal bulletin The Brief today includes a comment piece by APIL President Jonathan Wheeler entitled “MPs must increase bereavement damages”. His article also address perceived deficiencies in how English law controls liability for secondary psychiatric harm.

The vehicle by which Jonathan Wheeler proposes that MPs might deal with bereavement damages is the Negligence and Damages Bill, a Private Member’s Bill introduced in Parliament on 13 October by Middlesbrough MP, Andy McDonald.

As noted in our recent post about the Bill, it presently appears to have little chance of progress although it does raise some interesting issues in addition to the level of bereavement damages. For example, other parts of the Bill would seek to ease the legal control tests for the recovery of damages for psychiatric harm caused by perceiving physical injury to a close relative. Those controls were laid down in litigation arising from the Hillsborough stadium disaster in 1989 and have been robustly reaffirmed by the courts in the intervening two and a half decades since. The cases of Ronayne v Liverpool Women’s Hospital (June 2015) and Young v MacVean (September 2015) are the most recent appellate confirmation of the tests in England and Scotland respectively.

The comment today by the APIL President states that “The law in this area has not changed since the Hillsborough stadium disaster 26 years ago. Our knowledge of mental illness has changed exponentially since then, and it’s time the law caught up. The Association of Personal Injury Lawyers has campaigned on these issues for years.” In fact, in 2013 in a submission outlining possible projects for the twelfth programme of law reform, APIL had proposed that the Law Commission should look again at this area. It was not, however, something that the Law Commission took forward.

On the one hand, there can be little doubt that APIL will continue to campaign for change on these topics. Bereavement damages and secondary psychiatric harm are top of its “agenda for change”, under the heading “Fairness for families”.

On the other, the judicial route via which it might secure change looks firmly blocked for the time being, given the recent robust decisions in both Ronayne and  Young. Further, the legislative route to change is very uncertain and the Negligence and Damages Bill appears, at present, quite unlikely to make meaningful progress in Parliament. Although it might serve to promote further debate on the matters it covers, it is not at all clear that law reform on these matters would be regarded as a priority by the present Government.

So, while the legal status quo prevails, it should nevertheless be anticipated that bereavement awards and compensation for secondary psychiatric harm could become more widely debated and covered in the media a little more frequently over the short and medium terms.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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