The Law On Damages - Who Cares?
Over-compensation and the risk of double recovery are two
of the key issues raised by the recent consultation paper proposing changes to
the law on damages. Sarah White, partner at law firm Browne Jacobson, believes
that the Government's proposals do not cover all the key areas in which reform
is required. In particular the Government must address the impact on
recoverable damages of rules relating to NHS and social services care
provision.
ìOne of the key arguments that is currently exercising the
minds of the legal and insurance sectors concerns the complex issue of
damages. We need to establish a system whereby fair financial compensation is
awarded to claimants without the risk of double recovery. The current system
allows claimants to recover for losses twice where collateral benefits such as
insurance or pension payments are received. Where care is involved, it is open
to a claimant to secure a substantial sum of damages and still obtain state
funded care provision.
ìWhile the recent paper on changes to the law on damages
contains much that is sound and sensible, the proposals would continue to allow
double recovery in relation to collateral benefits and the issues surrounding
provision of care are not dealt with fully. This is a missed opportunity to
deal comprehensively with the problems arising in relation to damages for care
and Browne Jacobson urge the Government to undertake a broader review of this
area.
"There is a clear public interest in clarifying the law
in these areas, given that most damages awards are funded by insurance
companies or public bodies and so, indirectly, by the public - ie the taxpayer
or insurance premium payer.
"The statutes and regulations relating to entitlement
to NHS and social services care are notoriously complicated. They have been
described by one judge as 'some of the worst, if not the worst, drafted and
most confusing subordinate legislation it has ever been my misfortune to
encounter'1. A full review of this complex regulatory
framework is required and this is the opportunity to do so.
"With clearer regulations this area of law will become
much more transparent and all those involved in claims as well as care
providers will benefit from a better understanding of their entitlements and
obligations. The current system is open to abuse, or perceived abuse, partly
because it is so difficult to penetrate the regulations. Evidence as to whether
or not this in fact occurs is limited, but it is...
To continue reading
Request your trial