16122019Mon
Last updateMon, 09 Dec 2019 2pm

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Expert Witness Blog

Scotland’s lawyers celebrate platinum

Scotland’s lawyers celebrate platinum

5 MONTHS AGO

This year sees the 70th anniversary of The Law Society of Scotland. Given that the legal systems in Scotland and England have been famously different for centuries, it seems perverse that the country’s lawyers only acquired their own representative body less than one of those centuries ago. In fact the principal was established in 1933, but the little matter of World War Two got in the way of its implementation.

Nevertheless, a platinum anniversary is something to be celebrated and Scotland’s advocates are determined to do just that: especially as it coincides with the centenary of the Sex Disqualification (Removal) Act, which paved the way for women to become solicitors for the first time.

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Expert Witness News

Authored by AI - Here be crypto dragons: it’s all about the evidence, proclaims the CastellGhostWriteBot

Authored by AI - Here be crypto dragons: it’s all about the evidence, proclaims the CastellGhostWriteBot

1 MONTHS AGO

Can you tell if this has been authored by a robot? Would it matter, legally or otherwise, if you couldn’t?

Are you crypto-friendly, or if not, at least crypto-aware?

Bitcoin is on a rollercoaster – zooming up and down in value. Who can predict which way or by how much? Are you one of the early adopters, adroitly enjoying the financial thrills and spills of a Bitcoin punt, despite allegations of ‘crypto whales’ manipulating the market for their own devious gain?

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Expert Witness Legal News

Why should we strive for an Inclusive Legal Services Sector?

Why should we strive for an Inclusive Legal Services Sector?

1 MONTHS AGO

By Amanda Hamilton, NALP

My parents were both lawyers. So many changes have affected the legal services sector over the last 30 years, that if they were alive, they wouldn’t recognise any of it!

The discussions may have been going on for decades regarding the possibility of merging the two major legal professionals, Barristers and Solicitors, into one, but as we all know by now, this will never happen.

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Expert Witness : Building and Property

Boundary dispute reform: let’s use the legislative vacuum to good effect

Boundary dispute reform: let’s use the legislative vacuum to good effect

3 MONTHS AGO

Who would have thought that Brexit – or the lack of it – would significantly affect the way in which the industry manages boundary disputes? Richard Crow, associate director of Trident Building Consultancy, explains:

Two years ago a Private Member’s Bill, sponsored by Lord Lytton, received its first reading in the House of Lords. The Bill suggested that boundary issues could be better addressed by using a structure which broadly replicates the provisions of the Party Wall Act – essentially removing much of the responsibility from solicitors and handing it to surveyors. Progress of the Bill was thwarted by the general election of June 2017, and with parliamentary time apparently unavailable to...

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Expert Witness : Criminal

More psychologists are in court – and that’s a good thing!

More psychologists are in court – and that’s a good thing!

1 YEAR AGO

Vulnerable offenders with mental health, alcohol and substance abuse problems are increasingly being diverted from short-term custodial sentences and towards treatment that aims to tackle the causes of their offending.

In the pilot areas – Birmingham, Plymouth, Sefton, Milton Keynes and Northampton – psychologists are working collaboratively with the existing panels of justice and health officials. Together, the professionals ensure that magistrates and judges have the information they need to determine whether an offender should be required to receive treatment for their mental health, alcohol or drug issues.

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Expert Witness : Medico Legal

How long should a hip or knee replacement last? Now we know

How long should a hip or knee replacement last? Now we know

9 MONTHS AGO

Researchers from the Musculoskeletal Research Unit at the University of Bristol have found that eight out of 10 total knee replacements and six out of 10 total hip replacements will still be in place after 25 years. The research, funded by the National Joint Registry and the National Institute for Health Research was published in The Lancet in February.

After reviewing thousands of case studies going back 25 years across six countries, generalisable survival data is now available for the first time to estimate how long hip and knee replacements are likely to last.

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Expert Witness : Technology

AI system can match experts at detecting eye disease

AI system can match experts at detecting eye disease

1 YEAR AGO

An artificial intelligence (AI) system that can recommend the correct referral decision for over 50 eye diseases as accurately as world-leading experts has been developed by researchers at Moorfields Eye Hospital NHS Foundation Trust. The research project was carried out in collaboration with DeepMind Health and University College London (UCL) Institute of Ophthalmology.

The breakthrough research, published online by Nature Medicine, describes how machine learning technology has been successfully trained to identify features of eye disease and recommend how patients should be referred for care, using thousands of historic de-personalised eye scans. It is hoped that the technology could one da...

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Expert Witness : Environment

The fundamental right to be protected from the dangers of air pollution

The fundamental right to be protected from the dangers of air pollution

7 MONTHS AGO

The British Safety Council welcomed the news of the High Court quashing the verdict of the 2014 inquest into the death of nine-year old Ella Kissi-Debrah, who suffered a fatal asthma attack. Her mother Rosamund has since campaigned for a fresh inquest, believing Ella’s death was caused by high levels of air pollution near her home in southeast London. It means that Ella could become the first person in the UK to have air pollution mentioned as a contributory factor on her death certificate.

Lawrence Waterman, Chairman of the British Safety Council, commented: “The ruling of the High Court is proof that since 2014 we have become much better informed about the dangers of air pollution. Air poll...

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Expert Witness : Animal & Farming

Dr WHO? by Dr Debbie Marsden

Dr WHO? by Dr Debbie Marsden

9 MONTHS AGO

Dr Debbie Marsden, a leading equestrian expert with over 20 years professional experience of expert witness work, offers some advice on selecting the right expert in cases involving animals

In animal related cases, a veterinary surgeon is often the best expert, being generally regarded as an authority on animals and easily recognised by the word ‘veterinary’ – a protected title – and the letters MRCVS (Member of the Royal College of Veterinary Surgeons) after various degrees.

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Parliament, Legislation And Public Sector

Home Office GDPR exemption risks new Windrush, says Law Society

Home Office GDPR exemption risks new Windrush, says Law Society

1 YEAR AGO

The Law Society of England and Wales has criticised the decision to exempt the Home Office from data access rules in the new Data Protection Act, which implements the widely-publicised GDPR. The move will inevitably lead to miscarriages of justice, the society has warned.

Law Society president Joe Egan said the immigration exemption in the legislation stripped accountability from Home Office decision making.

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Expert Witness: Events

Conference makes sense of a changing world

Conference makes sense of a changing world

3 MONTHS AGO

Nothing stays the same; is everything changing? That is the theme of this year’s Annual Conference of the Expert Witness Institute (EWI), to be held on 26 September at the Church House Conference Centre in London.

Founded in 1996, the EWI is the leading membership body and training provider for expert witnesses in the UK. Its objectives are to promote excellence in expert evidence worldwide through rigorous vetting and evaluation and to support the proper administration of justice and the early resolution of disputes through fair and unbiased expert evidence.

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CURRENT ISSUES - CLICK IMAGE TO READ THE LATEST ISSUES

 Your Expert Witness Issue 51


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Issue No. 48  The Charity Pages Issue 4

Fatal Accident Act 1976, A Petition to Change the Law

When a loved one is unlawfully killed in England and Wales due to an accident on the road or at work the law is unjust and outdated. One example is if a parent loses a child, the usual award will be a pitiful bereavement award and the return of ‘reasonable’ funeral expenses. The usual compensation award for a loss of a child is about £15,000. The old adage that ‘it is cheaper to kill’ is true here. The value of life, a child, is worthless. There are many other examples of the law getting in the way of justice. Motor vehicle insurance companies are happy for this unjust law to remain. We are not, the law needs to be modernised and updated as a matter of urgency. Scotland has a different laws that are much fairer to bereaved families. We need something similar to our barbaric laws.

The Law Commission – recommends Change

In the Law Commissions’ report, November 1999 made proposals to modernise the Fatal Accidents Act 1976 and to increase the bereavement award to bring the legislation into line with the values of modern society. Further proposals were put forward to render the law fairer and more certain than it is at present. Unfortunately the recommendations have not been implemented causing unnecessary hardship and distress to bereaved families who have lost a loved one to due to a fatal accident in England & Wales.

Background

In fatal accident claims, where a person is killed through the fault of another, the deceased’s immediate family (usually widow, widower, and/or children) are able to claim compensation under the Fatal Accidents Act 1976 for the hurt and losses that they suffer as a result of the death.

Regrettably the present law is very restrictive as to who can claim and often excludes deserving family members that were dependent upon the deceased immediately prior to death.

The Fatal Accidents Act makes reference to a fixed list of possible dependents which, the courts have pointed out, should be dispensed with and Parliament should be persuaded to allow any person to claim providing they can show a relationship of dependency. (Otton LJ, Shepherd v Post Office The Times 15 June 1995)

Aside from the limited possible dependents, the further problem is that the law in this area has to consider what would have happened in the future but for the death. The Courts have to consider a very wide range of uncertainties, which is imprecise and difficult to judge with any accuracy. Often it is ‘finger in the air’ time and see where the wind blows. The net result is that family members, in particular parents, will find it difficult to prove future dependency if their loss relates to a young child or teenager. Compensation is often limited to funeral expenses and a bereavement award in such tragic cases.

The law also tended to put widows (and widowers) on trial, asking distasteful and distressing enquiries about the relationship with the deceased, the strength of the marriage, the prospects of divorce or remarriage and other personal inquisitorial investigations.

As a footnote, claims involving the estate are governed by the Law Reform (Miscellaneous Provisions) 1935 but will not be considered in this article save that any compensation for pain and suffering prior to death will be paid to the estate.

What Can Be Claimed?

In short under the 1976 Act:

  1. Reasonable funeral expenses (but no memorial),
  2. Pecuniary losses to a restricted list of dependents of the deceased,
  3. Non-pecuniary losses to restricted list of dependents of the deceased,
  4. Bereavement award.

One interesting question is what cannot be claimed. If a person is killed instantly, the deceased estate receives nothing. Life is worthless.

If there is some pain and suffering before death the Judicial College Guidelines advisers that an award for ‘mental anguish’ of up to £3,910 for fear of impending death or for a parent who loses a child. If the deceased was immediately unconscious and dies within one week, the sum of up to £2,340, the equivalent to a minor whiplash injury in a low impact rear-end shunt.

However we have heard damages of over £200,000 being paid to celebrities who have had their phone tapped for breach of privacy and hurt feelings. Such awards are certainly justified, but compared to a loss of a close family member, there is no comparison.

Bereavement Award

Bereavement compensation for non-financial loss such as grief and sorrow, is currently only available to the deceased spouse/civil partner or parents. The award is currently £12,980.

The Law Commission has referred to the award as being:

‘perceived as performing a further symbolic function of providing some sympathetic recognition by the state of the fact of bereavement, and an expression on the part of society of the gravity with which it regards the loss of a human life.’ [My emphasis].

In their report, the recommended damages for a bereavement award was £50,000 to be divided equally to those family members who are entitled. My view (to acknowledge the ‘gravity of the loss of a human life) is that the bereavement compensation should a minimum of upper scale of severe psychiatric damage of £100,000 but submit it should be comparable to injuries involving paralysis in excess of £300,000.

Unfairness

In thirty years of practice, in my view, the Fatal Accidents Act is the law that needs modernising with haste. The hardship and unfairness of its application exacerbates the hurt to grieving families and must stop.

Here are some examples of why the law needs to be modernised.

  • Parents do not received a bereavement award if a child is over 18 years old.
  • A child is not entitled to a bereavement award if he/she loses a parent.
  • If both parents survived the death of a child, they share the bereavement award (as though the grief is of less value).
  • Brothers, Sisters, Grandparents are not entitled to bereavement compensation.
  • Similarly carers looking after the deceased prior to death are not entitled.
  • The costs of looking after a dog are worth more than the loss of a child and a bereavement award.
  • If the deceased is killed instantly, life is worthless.
  • If a baby, young child or teenager (under 18 years) is unlawfully killed, the parents are likely to receive the return of the funeral expenses and a bereavement award only.
  • If an adult, independent unmarried child is killed, the parents will obtain only the return of the funeral expenses.
  • A grieving parent who takes time off work will receive no compensation for any loss of earnings. Often they have to borrow off family to make ends meet or take out loans to pay for the funeral and headstone.

There are many other examples of this unjust piece of legislation. All bereaved families appreciate no amount of compensation will be enough but the level of the bereavement award must reflect the value that society puts on life. It should not be a token of recognition of grief. The public requires justice and nothing can hurt more than the unlawful killing of a close family member. To this end, the law must mirror the gravitas of the loss.

It must also be noted that the Fatal Accidents Act is closely followed by the Criminal Injuries Compensation Authority where a family member is unlawfully murdered. Again the injustice continues and something must be done.

Government E-Petition Please Support Us

I would urge the legal profession to help support my E-Petition to change and modernise the Fatal Accidents Act 1976.

Ronnie Hutcheon (Solicitor)
 

R James Hutcheon Solicitors

 Member of the Association of Personal Injury Lawyers

Ronnie Hutcheon is a solicitor that specialises in serious injury and fatal accident claims. He is a member of the Association of Personal Injury Lawyers with over 30 years’ experience.