The purpose of damages - restating the obvious

"Basil: Can't we get you on Mastermind, Sybil? Next contestant Sybil Fawlty from Torquay, special subject the bleeding obvious."

According to the Encyclopaedia Britannica -

“The theory of an award of damages in a personal-injury or other tort case is that the injured party should be placed in the position he would have been in if the injury had not occurred, so far as this can be done with a monetary award.”

This look like a serious case of stating the obvious, but it goes to the heart of how our legal system seeks to compensate victims of negligence. You would struggle to find a victim who would rather have the money than remove the pain and suffering. But in the absence of turning the clock back, this is the best we can do. In another sense it is the least we can do. It is the bottom line.

In the case of Medical Negligence, it is alarming that there are voices that call for this basic principle to be undermined.

In a recent article about the cost of claims Pallavi Bradshaw from the Medical Protection Society has called for a dramatic reduction in what can be recovered by loss of earnings –

“For example, the use of national average weekly earnings to calculate damages awarded, instead of a patient’s weekly earnings—to avoid higher earners receiving more from the NHS in compensation than lower earners, for a similar claim.”

https://blogs.bmj.com/bmj/2020/02/24/pallavi-bradshaw-tackling-the-cost-of-clinical-negligence-claims/?utm_campaign=shareaholic&utm_medium=twitter&utm_source=socialnetwork

Where do we start? Why should innocent victims of medical blunders be penalised by having their compensation artificially reduced to save money? If someone loses earnings because of negligence that is the impact of the incident. A person does not suddenly see their mortgage reduced just because their doctor injures them.

This isn’t the first time that we have heard this argument. It appeared in an article back in 2017 ironically entitled – ‘striking the balance’. I wrote this back then –

“Damages are calculated by reference to what is needed to put a victim, as far as possible, in the position they would have been if the incident had not happened. So a person who earns £100k a year is so badly injured that they will never work again. The national average salary is £27,600.00. So where does the poor victim find the shortfall of £72,400.00? Who pays their mortgage? They are left with a life changing injury and could be forced out of their house into the bargain..”

http://thestevecornforthblog.blogspot.com/2017/06/medical-negligence-striking-massive.html

Three years on, and we are still hearing the same nonsense.

The best way to reduce the cost of claims is to do everything necessary to prevent these incidents happening in the first place. It would also help if we saw cases resolved quickly.

It is not acceptable to punish innocent victims by imposing a dramatic reduction in their levels of compensation…