Ultimately the courts will decide, but evidence is required for proof. It is not determined on say so. Hard evidence from people with knowledge of the facts would be required and their evidence would have to stand up.
The second question the Senator raised goes to the question of the venue in which a claim may or can be brought. This is a complex area of law. It deals with aspects of international law where these claims can be brought, etc. Generally, they would be brought in the country where the wrongdoing was done or where the wrongdoer resides or carries on business. For example, reference was made to the Lockerbie disaster. The ensuing claims would have to be brought in the jurisdiction where the accident happened, although circumstances may arise where a claim could also be maintained as an alternative in the state where the airline had its headquarters, where its registered office was located. This is a complex area of the law not concerned with this Bill. It involves questions of international as well as national law.
The Senator's question on relationships is very important and relevant to the Bill. When the Bill is passed into law, if a person's marriage was still subsistent but that person was living on a permanent basis with somebody else, two aspects of the claim would have to be dealt with separately. The first would be concerned with the claim for mental distress. The existing figure of £7,500, being increased by the Bill to £15,000, are maximum figures. They are not automatic but are the maximum the courts may award. They are directed to the mental distress the people suffered. A court may hold that, so far as mental distress is concerned, if the husband and wife had been separated for a long time and had gone their separate ways, the mental distress element may be considerably less than the maximum figure provided for, or perhaps not exist at all. That is a matter for the court to decide, depending on the circumstances. Although they were separated and living apart, what a husband or wife could recover under the financial loss category depends on whether there was financial loss. If subsisting maintenance payments were due from one to the other, although they were separated, the issue of compensation for the loss of the maintenance rights must be considered.
The Bill provides that when the divorce category comes into play, damages for mental distress will not be applicable. A divorcee will not be entitled to anything under the mental distress category because the relationship is over.
Senator Fitzgerald mentioned children but that aspect does not come into the equation. Children are children and their rights are rights, irrespective of with whom they are living. If the parent of a child, either marital or non-marital — it makes no difference — is killed by a wrongful act of another person, the child will be entitled to compensation under both categories, mental distress and financial loss. I hope these points are helpful.
