Fatal Accidents Act 1976 (Remedial) Order 2020

Lord Thomas of Gresford Excerpts

Thursday 3rd September 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, I suppose I started off my professional career as a solicitor in the era of Lord Campbell’s Act of 1846 which contained no element in awards of damages equivalent to the Scottish solatium. The Scottish approach always recognised the grief that a death causes, exacerbated by the negligent act of an institution or an individual.

When the Fatal Accidents Act 1976 came into force, I was involved in personal injury litigation for both sides—that is, individual claimants and insurance companies. I certainly thought at the time that a lump sum by way of a bereavement award could never be an adequate or just measurement of grief. I have always been attracted to the Scottish system whereby this aspect of compensation is considered on a case-by-case basis. It is a question of principle. Indeed, in the field of criminal injuries compensation, the move from common law damages to a tariff system, effectively awarding lump sums for injuries regardless of individual circumstances, caused me to resign from the Criminal Injuries Compensation Board in the early 1990s.

It is in that context, therefore, that I must regard this remedial order as a small step in the right direction but no more. I concur completely with the Joint Committee on Human Rights’ excellent report that many other issues need further consideration. Since this particular case was concerned with the status of the claimant, the award of a lump sum for bereavement was not in issue and the court did not decide that a lump sum was incompatible with the convention. To change the system would therefore require primary legislation, as the Joint Committee and the noble Baroness in her introduction recognised.

In assessing pain and suffering as an element in an award for personal injury, the court is concerned with many factors, for example the extent and duration of the pain, the time taken for recovery, any permanent effect, previous state of health, age and domestic circumstances —a plethora of issues. All these are variable and are considered by a judge against guidelines that judges as a body have laid down and published. However, grief is a form of suffering and will vary from individual to individual. For example, the grief of a spouse in a happy and long-lasting marriage must surely be more intense than for a spouse where a marriage of short duration is on the brink of a divorce. It is not beyond the wit of a judge to recognise these differences.

The consequences of the lump sum approach to a bereavement award may be dramatic. For example, suppose two people are involved in an accident caused by the negligence of a third party, and one is killed and the other injured. The spouse of the deceased would receive a lump sum bereavement award regardless of circumstances while the injured person would receive as compensation for pain and suffering a sum carefully calculated with reference to the personal circumstances of that injured individual. The present lump sum system surely raises in the mind of the widow that the state values the life of her husband at a derisory sum. If she cannot substantiate a dependency award, so that is all she receives from the negligent defendant or his insurance company, that will seem all the more unjust.

While this issue is beyond the scope of this remedial order, it does raise the question of equal division of the lump sum between a spouse and a cohabitee, as the noble Baroness pointed out. The Government say in their Explanatory Memorandum that they wish to avoid “intrusive inquiries” into

“the respective merits of two eligible claimants.”

I cannot imagine a more likely source of conflict and bitterness on both sides than an equal division between a wife of many years standing and a cohabitee of just two years. Would such a conflict really be in the public interest?

APIL—the Association of Personal Injury Lawyers—has produced a useful briefing on this issue, referring to its Scottish experience where, as I have already said, the system is different. I certainly go along with the proposals that it makes. There is a need for a wider debate on awards in fatal accidents cases and I hope that it will take place.