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

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT