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Proposed legal changes for those who suffer a psychiatric injury or lose a loved one as a result of negligence

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    Lucy Crawford updates on the progress of the Negligence and Damages Bill which looks to reform the criteria for psychiatric injury claims and compensation following the death of a loved one.

    By Lucy Crawford

The current law

Under current legal guidelines in England and Wales, you can usually receive more compensation for a seriously injured thumb  than for the loss of a loved one due to negligence.  There is a statutory bereavement award, available to those who have lost a loved one, which currently stands at £12,980. APIL has carried out a survey which found that 65% of people thought this was unfair and the new Bill aims to give better access to justice.

Relatives in England and Wales who suffer psychiatric injury as a result of the death or serious injury to their loved one also have to overcome very strict and high hurdles in order to be compensated for their own injuries. As an example, in relation to the death of a child during childbirth, the law is so strict that it often means that a mother can make a claim for psychiatric injuries whilst a father cannot even though they may both have been present.

Unlike Scottish law, this rigid approach to compensation for bereavement has arguably failed to keep up with the pace of modern life and new technology.

In March 2014 I wrote about the difficulties with the present law and APIL’s (The Association for Personal Injury Lawyers) campaign for change and better access to justice for bereaved relatives. Since this blog was written, a new Bill was presented to Parliament on 13 October 2015 – The Negligence and Damages Bill. This is known as the first reading and there was no debate on the Bill at that stage. The second reading was due to take place this week, on 22 January 2016, but is now due to take place in March 2016.

WHAT DOES THE BILL SUGGEST?

For individuals making a psychiatric injury claim:

In line with modern living, the Bill has massively extended the list of individuals (which currently stand at four – parents, spouses, children and fiancés) who can make such a claim. The new list includes fourteen different types of relationships such as, cohabitees, friends and colleagues.

The Bill also aims to abandon the need for there to be a requirement of “a sudden and shocking event” which is extremely restrictive. For example, those who have suffered over a longer period of time whilst watching a loved one deteriorate and die are currently not able to bring a successful claim.

The constricting requirement for the injured person to be close to the event in time and space is also to be abolished as to bring the law up date with new ways in which an individual can learn of a death or injury to someone they know. Nowadays, a large portion of the population has immediate access to the news on their smartphones and social media in particular ensures that news of events is rapidly spread.

Compensation to those who lose a loved one:

APIL’s survey found that 80% of people think the bereavement award should be over £15,000 and 57% of people think that it should be over £100,000. As stated above, the current award is fixed at £12,980, whatever the circumstances.

The new Bill, like in Scotland, aims to be more flexible by removing the fixed sum and allow Judges to look at each case individually. Factors for Judges to consider will include taking into account the level of dependency the individual had on the deceased, as well as, the grief and sorrow caused and funeral expenses. Currently, only a husband, wife, civil partner and parents of a minor are entitled to a bereavement award and the Bill has extended this list to include cohabitees, siblings and grandparents.

WHAT HAPPENS NEXT?

Whilst it is pleasing to note that the Bill has passed the first reading; there is still a long way to go before it can become a law and there is of course always the chance that it will be opposed and not become legislation. We hope, however, that the Negligence and Damages Bill will receive Royal Assent and allow families in England and Wales to be treated more fairly and in line with those in Scotland, and ensure better access to justice.  I will be following the second reading and further developments with interest.

I and my colleagues in the Clinical Negligence Team are experienced in advising clients who have suffered psychiatric injury or lost a loved one as a result of negligence.  We understand that this will be a very difficult time and we aim to make the process as stress free as possible.  If you wish to discuss your experience for advice on whether a claim can be made, please contact me or a member of the team.

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