EXPENSES
1. MEDICAL AND NURSING EXPENSES
(1) Section 2(4) of the Law Reform (Personal Injuries) Act 1948
8.1 We recommend that section 2(4) of the Law Reform (Personal Injuries) Act 1948 should not be repealed or reformed. (Paragraph 3.18)
(2) Recoupment of costs by the NHS
8.2 Although it would not be appropriate for us to be make detailed recommendations for legislation, we have the following observations to make to those in Government charged with deciding how to proceed with the issue of a recoupment right for the NHS:
(1) subject to a cost-benefit analysis pointing to a contrary conclusion, it is our view, from a legal perspective, that the NHS should have the right to recover from tortfeasors (or other legal wrongdoers) the cost of NHS care resulting from a tort (or other legal wrong).
(2) we see no compelling reason why the scope of that recoupment should be confined to where the wrongdoer is compulsorily insured (that is, we see no compelling reason why the scheme should be limited to road traffic or employers’ liability).
(3) the scheme implemented in the Road Traffic (NHS Charges) Act 1999 (including collection by the Compensation Recovery Unit, a tariff of medical expenses and an appeals procedure) is one that could relatively easily be extended to recoupment by the NHS in areas beyond road traffic accidents.
(4) contrary to the 1999 Act, we think that any finding of, or bona fide agreement on, contributory negligence should govern the percentage liability of the wrongdoer to the NHS just as it does to the immediate tort victim. (Paragraph 3.43)
(3) Care provided free of charge to the claimant by relations or other private parties
8.3 We recommend that giving private providers of gratuitous care a direct claim against the tortfeasor or other legal wrongdoer would not be an appropriate way of reforming the law. (Paragraph 3.53)
(i) as has long been the case in English law, damages should continue to be awarded in respect of care reasonably provided, or to be provided, gratuitously to the claimant by relatives and friends;
(ii) the claimant should be under a personal legal obligation to account for damages for past care to a relative or friend who has provided that gratuitous care;
(iii) there should be no legal duty on the claimant to pay over the damages recovered in respect of future gratuitous care. (Paragraph 3.62)
8.5 It is our view that the recommendation in part (ii) of the previous paragraph should be implemented by legislation but that otherwise the recommendation in the previous paragraph does not require or merit legislation. (Paragraph 3.66; Draft Bill, clauses 2, 3(2)(a) and 3(3))
8.6 We recommend a legislative provision reversing the decision in Hunt v Severs1 and laying down that the defendant’s liability to pay damages to the claimant for nursing or other care should be unaffected by any liability of the claimant, on receipt of those damages, to pay them or a proportion of them back to the defendant as the person who has gratuitously provided (or will provide) such care. (Paragraph 3.76; Draft Bill, clauses 1, 3(2)(a) and 3(3))
8.7 We recommend that no limits, either in the form of ceilings or thresholds, should be introduced on damages awarded for gratuitous care. (Paragraph 3.79)
8.8 We recommend that the law in relation to the quantum of damages for gratuitous care should not be reformed by statute. We nevertheless recommend that the courts should be more willing to award damages to compensate carers for their loss of earnings even though these exceed the commercial cost of care. (Paragraph 3.86)
(4) Loss of the claimant’s ability to do work in the home
8.9 We recommend that, where the claimant has suffered a loss of or reduction in his or her ability to do work in the home:
(1) this should be compensated as a past pecuniary loss where the claimant has reasonably paid someone to do the work, and as a future pecuniary loss where the claimant establishes that he or she will reasonably pay someone to do it.
(2) consistently with our recommendations on gratuitously rendered nursing services, the claimant should also be able to recover damages for the cost of the work where the work has been or will reasonably be done gratuitously by a relative or friend (including the tortfeasor) and should be under a personal liability to account for the damages awarded in respect of past work, to the person (including the tortfeasor) who performed the work; but
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no legal obligation should be imposed in respect of damages awarded for work to be done in the future.
(3) where, despite the impairment of his or her ability to do so, the claimant has carried out work in the home and/or will do so, damages for non- pecuniary loss (pain, suffering and loss of amenity) should include a sum in respect of past and/or future reduced ability to do work in the home.
We would also emphasise that (1), (2) and (3) are not intended to be mutually exclusive: that is where the claimant pays someone to do part of the work and/or receives gratuitous services for part of the work and/or carries out part of the work him/herself, damages under (1), (2) and (3) can be combined. (Paragraph 3.91) 8.10 We consider that the recommendation in the previous paragraph should be
implemented by legislation only to the extent that we have recommended analogous legislation in relation to gratuitous nursing care (in paragraphs 8.5 and 8.6 above). (Paragraph 3.93; Draft Bill, clauses 1, 2, 3(2)(c), and 3(3))
(5) Hospital visits
8.11 Consistently with our recommendation on gratuitous nursing care, we recommend that where someone reasonably and gratuitously has visited or will visit an injured claimant in hospital, the claimant should be able to recover damages for the cost of the visits; further that the claimant should be under a personal obligation to account for the damages awarded in respect of past visits to the visitor. But there should be no legal duty on the claimant to pay over to anyone the damages awarded for future hospital visits. Again, we think that legislation to implement this recommendation is required only to the extent that we have recommended analogous legislation in relation to gratuitous nursing services (in paragraph 8.5 above). (Paragraph 3.98; Draft Bill, clauses 2, 3(2)(b), and 3(3))
8.12 As in relation to gratuitous care, and by the same sort of legislative provision as recommended in paragraph 8.6 above, we recommend that Hunt v Severs should be legislatively reversed in respect of its denial of a claim on behalf of the defendant for the costs of hospital visits. (Paragraph 3.100; Draft Bill, clauses 1, 3(2)(b), and 3(3))
2. ACCOMMODATION EXPENSES
(1) Purchasing accommodation
8.13 We recommend that damages for the costs of purchasing accommodation should continue to be assessed using the Roberts v Johnstone method (with the ILGS rate being the appropriate annual rate of return). (Paragraph 4.17)
8.14 We recommend that no legislative provision is required in respect of damages for the purchase of accommodation paid for gratuitously by a third party. (Paragraph 4.19)
8.15 We recommend that the law should not be changed in order to provide the courts with a power to determine the beneficial interests in property at the time of trial when damages are awarded. (Paragraph 4.21)
8.16 We recommend that no change is necessary in respect of damages awarded for the incidental costs associated with moving. (Paragraph 4.23)
(2) Alterations to property
8.17 We recommend that (although no legislation on this is needed) the approach in
Willett v North Bedfordshire HA to the assessment of damages for alterations
increasing the value of property should be preferred to that in Roberts v Johnstone. Damages should therefore be assessed by applying the appropriate annual rate of return to the increase in value of the property or (if smaller) the total cost of the alterations and then applying a multiplier to this sum; any ‘wasted costs’ (i.e. any balance of the cost of alterations minus the increase in value) should then be added. (Paragraph 4.27)
8.18 Although we do not think legislation is necessary (and this recommendation, like several others above, is therefore addressed to the judiciary) we consider that where, as a result of his or her injuries, the claimant reasonably pays for alterations (or can establish on the balance of probabilities that he or she will pay for alterations) to his or her accommodation and the alterations result (or will result) in a decrease in the value of property, damages should be awarded for (a) the cost of those alterations and (b) the amount of the decrease in the value of the property. (Paragraph 4.33)
3. MANAGEMENT OF THE CLAIMANT’S AFFAIRS
(1) The Court of Protection
8.19 We recommend that no legislative reform is required to the method by which damages for the fees of the Court of Protection are calculated, and any more precise method of calculation should be left for the courts to develop as appropriate. (Paragraph 5.3)
8.20 We recommend that, while no legislation on this is required, the courts should reduce damages for Court of Protection fees (whether fixed or variable) for contributory negligence. (Paragraph 5.10)
(2) Financial advice
8.21 We recommend that, following the House of Lords’ decision in Wells v Wells2 laying down a discount rate governed by the return on ILGS, it would be inappropriate at this stage for there to be a legislative provision in relation to damages for the cost of financial advice. (Paragraph 5.15)
4. LOSSES ARISING OUT OF DIVORCE
8.22 We recommend that the law should not be reformed to allow claimants to recover damages for losses, whether pecuniary or non-pecuniary, arising out of a divorce foreseeably consequent on an actionable personal injury. (Paragraph 6.34)
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5. INTEREST ON PECUNIARY LOSS
8.23 We recommend that, although no legislative provision is necessary, the rate used to calculate interest on damages for pecuniary loss should not be reduced to try to exclude the effects of inflation on interest rates and that the rate on the special account is a satisfactory basis for that rate. (Paragraph 7.4)
8.24 We recommend that, while legislation is unnecessary, the following principles should be applied by the courts:
(1) interest on damages for pre-trial pecuniary loss should continue to be awarded only if claimed.
(2) interest on damages for a non-recurring pre-trial pecuniary loss should be awarded at the full average rate from the date of the loss to the date of trial. (3) interest on damages for a recurring pre-trial pecuniary loss should be awarded at the full average rate from the midpoint of the specific period during which the recurring loss was suffered to the date of trial.
(4) either of the parties may establish (provided the details have been specifically pleaded) that a different method of calculating interest is more appropriate in the circumstances than recommendations 2 or 3.
(5) notwithstanding recommendations 2-4, the court should have a discretion to refuse interest or to award interest on a different basis than that applicable under recommendations 2-4. (Paragraph 7.16)