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Memorandum submitted by Association of Personal Injury Lawyers (CM 4)
CHILD MAINTENANCE AND OTHER PAYMENTS BILL
WRITTEN EVIDENCE TO PUBLIC BILL COMMITTEE
From
THE ASSOCIATION OF PERSONAL INJURY LAWYERS (APIL)
October 2007
The Association of Personal Injury Lawyers (APIL) was formed by claimant lawyers with a view to representing the interests of personal injury victims. APIL currently has around 5,000 members in the UK and abroad. Membership comprises solicitors, barristers, legal executives and academics whose interest in personal injury work is predominantly on behalf of injured claimants.
The aims of the Association of Personal Injury Lawyers (APIL) are:
§ To promote full and just compensation for all types of personal injury; § To promote and develop expertise in the practice of personal injury law; § To promote wider redress for personal injury in the legal system; § To campaign for improvements in personal injury law; § To promote safety and alert the public to hazards wherever they arise; § To provide a communication network for members.
APIL's executive committee would like to thank the association's president, Martin Bare, for his contribution to this paper.
Executive summary
· APIL warmly welcomes the Government's efforts to ensure mesothelioma victims receive early financial support through this Bill.
· We draw the Public Bill Committee's attention to paragraph 49 subsection 3(b) which fails to ring-fence a claimant's general damages, making the injured person vulnerable to a level of recovery which could leave him with no damages whatsoever, completely negating, we believe, the Government's purpose in this Bill.
· Paragraph 49 subsection 3(a) allows the Government to recoup from the damages of a dependant after the claimant's death, undermining the provisions of the Fatal Accidents Act 1976.
· Paragraph 4 of schedule 1 allows anyone working for the Commission to cause injury through negligence to be exempt from liability, which is contrary to the common law in this country. This is probably an unintended effect and should be rectified now.
1.
2. The association has been a robust supporter of the Government's efforts to improve the way the law works for the benefit of people suffering from mesothelioma. The Department for Work and Pensions' commitment to ensuring all mesothelioma sufferers receive early financial support is particularly welcome.
3. At the moment, if a claimant receives a payment under the Pneumoconiosis (Workers Compensation) Act 1979 and then goes on to make a successful civil claim, the Government cannot recoup benefits from the compensation award via its Compensation Recovery Unit (CRU). Part 4 of the Child Maintenance and Other Payments Bill is a creative solution which allows the Government to recoup such lump sums, which will in turn fund the new early payments to be made available to mesothelioma sufferers.
4. We do however, have fundamental concerns in respect of one particular aspect of the Bill. A civil compensation claim is divided into several 'heads' of damages. By way of example these can include damages for past and future loss of earnings, damages to cover the cost of nursing care, etc. The claim also always includes 'general damages', which are designed to compensate the injured person for the pain and suffering and loss of amenity endured as a result of the injury.
5. When the CRU recoups benefits from the claim, it has never been able to recoup from the general damages award because this has been ring-fenced to protect claimants for many years. Recoupment therefore comes from other heads of damages and, if there is not enough money available in these other heads of damages, the balance is paid by the compensator rather than from the injured party. This is right and proper in a society which operates under the principle of 'polluter pays'.
6. Paragraph 49, subsection 3(b) however, allows for recovery to the extent that the injured person's compensation might be reduced to nothing. Clearly, this Bill would effectively contradict the civil compensation system by not allowing the claimant's general damages for pain, suffering and loss of amenity to be ring-fenced.
7. If this paragraph were to pass unamended, the result would be the reverse of what the Bill set out to achieve, and vulnerable people, who have been injured through the negligence of the defendant, could be left with no civil compensation at all.
8. We are also concerned about subsection 3(a) which allows for recoupment from a compensation payment made to a dependant of the deceased claimant. Section 4 of the Fatal Accidents Act 1976 states:
"In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death, shall be disregarded."
9. This Act takes into account the fact that there is no direct relationship between the dependant of the deceased claimant and the CRU. No benefits were ever paid to the dependant and the compensation should therefore be preserved, in line with the "polluter pays" principle, once again..
10. Our final point relates to paragraph 24 of Schedule 1 of the Bill which, while not relating directly to personal injury victims, does relate to APIL's aim of avoiding needless injury.
11. This paragraph states that members of the Commission, its committees, staff and chairman are exempt from liability in damages during their work for the Commission.
12. The effect of this paragraph is that if any member of Commission staff were to drive, for example, from one office of the Commission to another in the execution of his duties, break for lunch and then continue his journey while under the influence of alcohol, he could cause a fatal accident through negligence, and have complete impunity from the civil law under this paragraph. Another example would be if a member of staff were to cause, through negligence, a workplace injury to a colleague or member of the public.
13. No-one would expect people to be exempt from liability in these circumstances.This is clearly an unintentional error which we hope the committee will address.
14. The association has no objection to the probable intended purpose of paragraph 24 Schedule 1 of the Bill, namely to prevent litigation arising out of the performance of functions under Parts 1 to 3 inclusive of the Bill. October 2007 |