CIVIL JUSTICE REFORM

Summary of presentation by Colin Ettinger of Irwin Mitchell

LIABILITY FOR PSYCHIATRIC ILLNESS
Under the present law, the general position is:

1. A person who suffers reasonably foreseeable recognisable psychiatric illness, as a result of another person's death or injury, cannot recover damages for negligence unless they can satisfy three main requirements:-

• That they had a close tie of love and affection with the person killed, injured or imperiled;
• That they were close to the incident in time and space;
• That they directly perceived the incident rather than, for example, hearing about it from a third person.

2. The Law Commission carried out investigation into this aspect. They formed the view that the controls were drawn unnecessarily tightly... However, the first control, the need for a close tie of love and affection, should be retained.

3. Additionally, they recommended the removal of two further restrictions...that the illness must be caused by "shock" and that the illness must not result from a death, injury or imperilment of the Defendant themselves.

4. This report was published on 10 March 1998. Some 6 years later, no action has been taken to implement any law reform. In answer to a parliamentary question (9/11/99) David Lock announced that the government considered it "worthwhile to undertake a comprehensive assessment of the individual aggregate effects of the proposals for legislation that are contained in the Law Commission report". In the answer, David Lock intimated that the government's final decision on the Law Commission's recommendations were expected in early 2000. To date, there are no signs of progress being made.

BEREAVEMENT DAMAGES
Bereavement damages are given in certain circumstances. An amount of £10,000 is awarded to the parents of infant children who have been killed as a result of another's fault - also to the husband or wife whose spouse has also been killed as a result of somebody else's negligence. The idea is to compensate for non-financial losses such as grief and sorrow. The Law Commission ...considered it unjustified that the award of bereavement damages was so limited. They recommended extending the list and (total amount)...adjusted...through index linking.

This report was published on 2 November 1999. In March 2002 the Lord Chancellor's Department stated that issues concerning wrongful death would be considered. To date, there has been no further action.

COMPENSATION FOR FUTURE LOSSES
The Court of appeal Judgment in Sheppard -v- Stibbe (2003) highlights the very real problem facing seriously injured Claimants in obtaining awards to enable them to pay for the care regime adjudged or agreed to be appropriate for the rest of their lives...In this case, the Courts recognise that this was "rough and ready" justice and did not sit well with the "full compensation principle" in an individual case.

The law relating to compensating individuals for future loss is about to change. The Courts will have the power to award periodical payments. However even then, the uplift of the periodical payments will be limited to the Retail Price Index. So, even on this basis, whilst the Claimant has the comfort of knowing that he/she will receive some amounts for the rest of their life, as the years go by a shortfall will emerge. At least with a lump sum, the Claimant has the opportunity to invest. Under the new regime there will be little or nothing to invest.

Yet again, government action is required in order to ensure that Claimants, in this case the most seriously injured, have full compensation.

POLICE DISCLOSURE OF DEFENDANT STATEMENTS
In a road traffic crash, in order to assess the merits of a claim it is necessary to obtain as much information as possible. The Police will carry out an enquiry. Very often they will interview, under caution, the proposed Defendant. It is the practice of most Police Authorities not to release the statement that has been taken from the Defendant under caution. This can significantly hamper the investigation into the crash. If it is necessary to advise the injured person or the family of the deceased, the quality of that advice can be impaired if the statement taken from the proposed Defendant is not disclosed.

In a recent Court of Appeal decision, Roe and Others -v- Fryers the Court weighed the interests of the parties concerned...The Court came down on the side of ensuring that civil justice was dispensed with and that disclosure should be given.

In spite of this decision, it is still the case that Police Authorities are refusing to disclose the statements without the consent of the Defendant or without a Court Order. This is hampering investigations on the part of those injured or killed in road crashes. Representations have been made to the Association of Chief Police Officers and it is hoped that a positive outcome is received.