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<title>Compensation awards in personal injury cases</title></titleStmt>

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<item n="speechevent">Lecture</item>

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<u who="nm1151"> okay you probably remember <pause dur="0.7"/> that we are dealing with compensation now so we're looking at damages awards <pause dur="0.7"/> and just to recap <pause dur="0.2"/> the <pause dur="0.4"/> topics we covered yesterday <pause dur="0.6"/> do you remember we # were looking at the way the <pause dur="0.2"/> judiciary will calculate <pause dur="0.4"/> the damages <pause dur="0.7"/> and we finished yesterday's class by considering the new <pause dur="0.2"/> method of calculation <pause dur="0.9"/> called the use of the Ogden tables <pause dur="1.2"/> if you remember <pause dur="0.5"/> previous to this summer <pause dur="0.4"/> the judges had relied on <pause dur="0.6"/> a fairly arcane form <pause dur="0.7"/> of calculation using something called the multiplier method <pause dur="0.6"/> where you took a sum which was usually the net earnings <pause dur="0.4"/> and multiplied by a figure <pause dur="0.2"/> that they had <pause dur="0.3"/> taken from precedent really <pause dur="0.8"/> and we saw yesterday <pause dur="0.3"/> that <pause dur="0.7"/> the new method under the Ogden tables and the reduced <pause dur="0.2"/> interest rate of three per cent <pause dur="0.6"/> did result in quite a substantial difference in the amount of the awards <pause dur="0.8"/> so where judiciary now use <pause dur="0.2"/> these Ogden tables which are based more on <pause dur="0.2"/> economics <pause dur="0.3"/> the awards are <pause dur="0.5"/> can be quite a lot higher <pause dur="0.3"/> than <pause dur="0.2"/> where they used the multiplier so

quite a significant change <pause dur="0.3"/> has occurred this summer in the case of Wells and Wells <pause dur="0.5"/> House of Lords decision <pause dur="2.4"/> i want to move on now to something called the Smith and Manchester <pause dur="0.3"/> award <pause dur="0.2"/> hopefully you've got yesterday's handout in front of you <pause dur="4.6"/> now <pause dur="0.2"/> the Smith and Manchester <pause dur="0.2"/> case was also quite important a nineteen-seventy-four <pause dur="0.4"/> decision <pause dur="0.8"/> and what this award was really dealing <trunc>w</trunc> <pause dur="0.2"/> with was the situation where the plaintiff <pause dur="0.2"/> was actually in employment at the time of trial <pause dur="1.5"/> so we weren't dealing with a situation where the the injured party was completely <pause dur="0.4"/> # unable to to work we now have a situation where the plaintiff <pause dur="0.2"/> was actually working at trial <pause dur="2.2"/> and of course this will be quite a difficult assessment for the court <pause dur="0.3"/> to try to calculate <pause dur="0.3"/> to what extent the injury <pause dur="0.6"/> will affect <pause dur="0.2"/> the plaintiff in the future in terms of his ability to work <pause dur="2.0"/> however in this case <pause dur="0.3"/> the court did indicate to us <pause dur="0.2"/> that there's certain things they would take <pause dur="0.3"/> on board <pause dur="0.4"/> in assessing <pause dur="0.5"/> the

future <pause dur="1.7"/> workability if you like the future ability to to go back on to the labour market <pause dur="1.0"/> sometime <pause dur="0.6"/> in in the future <pause dur="1.6"/> and <pause dur="0.3"/> the solicitor who's maybe looking at <pause dur="0.2"/> the question of a Smith and Manchester award <pause dur="0.3"/> has now been <pause dur="0.3"/> guided <pause dur="0.8"/> to look at certain issues <pause dur="1.5"/> and these are the following <pause dur="0.7"/> well first of all of course they will consider what the plaintiff's <pause dur="0.4"/> present or current wage is <pause dur="2.0"/> they will look at <pause dur="0.4"/> the plaintiff's future prospects <pause dur="3.2"/> and thirdly they need to consider of course <pause dur="0.3"/> the ability of the plaintiff <pause dur="0.3"/> to obtain <pause dur="0.3"/> work in the future or whether there will be an impact on that plaintiff <pause dur="0.5"/> resulting from the injury <pause dur="2.6"/> now again like most of these calculations as we have seen <pause dur="0.2"/> a lot of it is hypothetical <pause dur="0.2"/> we don't really know what is going to happen in the future <pause dur="0.6"/> and what real impact the injury might have <pause dur="0.3"/> on the plaintiff <pause dur="0.2"/> in terms of <pause dur="0.3"/> labour his ability to to fall back on the labour market <pause dur="1.9"/> so these Smith and Manchester claims are quite complicated <pause dur="0.4"/> and require the use of expert

evidence to try and assess <pause dur="0.4"/> the impact that the injury has had on the plaintiff's <pause dur="0.3"/> ability to work <pause dur="4.7"/> so for example you might have experts called in <pause dur="0.2"/> to look at the <pause dur="0.3"/> particular occupation in which the plaintiff is is <pause dur="0.3"/> working <pause dur="0.3"/> and assess <pause dur="0.4"/> the future prospects <pause dur="0.2"/> in that occupation <pause dur="1.1"/> so for example <pause dur="0.2"/> is it likely <pause dur="0.2"/> that <pause dur="0.6"/> there are going to be difficulties in employment in the future <pause dur="0.3"/> in this area of work <pause dur="1.7"/> and obviously particularly <pause dur="0.2"/> in relation <pause dur="0.2"/> to the plaintiff's own employment <pause dur="0.9"/> to what extent does the disability <pause dur="0.2"/> affect this plaintiff <pause dur="0.2"/> in terms of the general <pause dur="0.8"/> employment situation <pause dur="0.3"/> of the job <pause dur="2.7"/> they might need evidence as to <pause dur="0.5"/> the possible need for the plaintiff <pause dur="0.2"/> to move areas to seek employment <pause dur="0.4"/> so that's a possible impact <pause dur="0.2"/> from a disability from an injury <pause dur="0.3"/> to what extent does <pause dur="0.3"/> our plaintiff <pause dur="0.2"/> need to go elsewhere to seek employment <pause dur="2.3"/> thirdly you might get expert evidence called in <pause dur="0.3"/> to look at the <pause dur="0.6"/> unusual insecurity <pause dur="0.3"/> of the particular <pause dur="0.3"/> occupation in which the plaintiff <pause dur="0.2"/> is in <pause dur="2.4"/> so a difficult assessment but

an important one <pause dur="0.3"/> it does try to take account <pause dur="0.3"/> of the impact of the injury on the plaintiff's <pause dur="0.3"/> ability to work in the future <pause dur="1.0"/> and as i said <pause dur="0.3"/> experts called in to look <pause dur="0.2"/> generally at the this area of employment <pause dur="0.4"/> and also at the particulars <pause dur="0.4"/> of the plaintiff's case <pause dur="0.3"/> can the plaintiff <pause dur="0.3"/> # does he have to move elsewhere <pause dur="0.3"/> what's this occupation <pause dur="0.2"/> likely <pause dur="0.3"/> # what's going to happen to it in the future are there <pause dur="0.2"/> insecurities in this job <pause dur="2.6"/> so in addition to obviously calculating using the Ogden tables <pause dur="0.2"/> do be aware of the Smith and Manchester awards if you go into practice in this area you'll certainly <pause dur="0.3"/> be looking <pause dur="0.3"/> at the <trunc>s</trunc> # Smith and Manchester <pause dur="0.3"/> type of claim so you need to be aware of its existence <pause dur="4.0"/> now we said that in terms of pecuniary loss the major part of the compensation of course <pause dur="0.3"/> comes from loss of earnings <pause dur="1.9"/> so that is by far the bulk and we said yesterday as well <pause dur="0.3"/> that if you have <pause dur="0.4"/> a high earning <pause dur="0.2"/> plaintiff <pause dur="0.2"/> of course that plaintiff's <pause dur="0.6"/> damages are going to be quite large <pause dur="1.1"/> compared to

somebody who's maybe not in employment or is not earning <pause dur="0.2"/> too much money <pause dur="2.4"/> but there is another type of claim that can be latched on to this general loss of earnings <pause dur="0.5"/> and pain and suffering which we mentioned yesterday <pause dur="0.5"/> and this is a rather unusual type of claim which we call <pause dur="0.3"/> the loss of life expectancy <pause dur="1.3"/> this is at <pause dur="0.3"/> point seven-four <pause dur="0.2"/> on your handouts <pause dur="3.8"/> now again <pause dur="0.5"/> a difficult <pause dur="0.5"/> issue to assess <pause dur="0.2"/> what we're trying to <pause dur="1.1"/> compensate for here is something called the claim for the lost years this is what this is known as <pause dur="0.8"/> in other words <pause dur="0.3"/> we try to look at what was the expectation of life <pause dur="0.3"/> before the accident <pause dur="2.3"/> now clearly <pause dur="0.2"/> certain injuries are going to be <pause dur="0.2"/> quite serious <pause dur="0.3"/> and <trunc>ha</trunc> will have an impact on life expectancy <pause dur="0.3"/> of the plaintiff <pause dur="0.2"/> and this is what we're dealing with here those lost years <pause dur="0.3"/> that arise <pause dur="0.3"/> out of a serious injury <pause dur="2.9"/> and in nineteen-eighty in the judgement of Picket against <pause dur="0.5"/> B-R Engineering <pause dur="0.8"/> the House of Lords did look at this question <pause dur="0.3"/> of the <pause dur="0.3"/> lost years the loss <pause dur="0.2"/> of life expectancy <pause dur="1.9"/> and

they held importantly <pause dur="0.3"/> that the plaintiff <pause dur="0.4"/> could claim <pause dur="0.3"/> for loss of <trunc>ye</trunc> earnings <pause dur="0.3"/> for those years <pause dur="0.2"/> which he had lost <pause dur="0.4"/> as a result <pause dur="0.3"/> of the accident <pause dur="1.2"/> in other words <pause dur="1.2"/> you can claim <pause dur="0.2"/> for years in which <pause dur="0.6"/> you would have been working but you have died earlier than you would have done <pause dur="0.3"/> as a result of the injury <pause dur="2.6"/> so you are assuming of course <pause dur="0.2"/> that the plaintiff <pause dur="0.4"/> has <pause dur="0.3"/> lived his life to the full <pause dur="0.7"/> and you calculate <pause dur="0.6"/> damages <pause dur="0.3"/> for those lost years <pause dur="3.0"/> the one part however <pause dur="0.2"/> that will be deducted from this <pause dur="0.3"/> calculation for loss of life expectancy lost years <pause dur="0.4"/> is <pause dur="0.4"/> any money that the plaintiff may have spent <pause dur="0.3"/> on his or her own maintenance <pause dur="2.4"/> so again an important decision <pause dur="0.7"/> our plaintiff <pause dur="0.4"/> has lost <pause dur="1.5"/> a certain amount of life as a result of the injury is going to die earlier than he or she would have done <pause dur="0.9"/> but we ignore that factor <pause dur="0.3"/> and we allow <pause dur="0.3"/> the plaintiff to claim for loss of earnings <pause dur="0.3"/> in that period <pause dur="0.3"/> after death <pause dur="0.2"/> until <pause dur="0.4"/> presumed retirement sixty-five <pause dur="2.6"/> but as i said <pause dur="0.5"/> do note a deduction <pause dur="0.2"/> for maintenance cost personal

maintenance costs <pause dur="2.0"/> and those are taken on board in the calculation <pause dur="7.5"/> now of course loss of life expectancy will only <pause dur="0.3"/> really apply to <pause dur="0.5"/> plaintiffs who are injured quite seriously and will probably die earlier <pause dur="1.0"/> than if the injury had not occurred <pause dur="0.7"/> something that is more usual in terms of compensation most people will claim something under this heading <pause dur="0.4"/> is medical <pause dur="0.3"/> and other nursing expenses <pause dur="4.8"/> basically the plaintiff can claim for reasonable expenses under this heading of medical and nursing <pause dur="0.2"/> costs <pause dur="0.8"/> obviously <pause dur="0.2"/> these expenses <pause dur="0.3"/> should have <pause dur="0.3"/> # resulted <pause dur="0.6"/> from the injury <pause dur="0.4"/> with which we're concerned <pause dur="4.1"/> and they can include not only medical <pause dur="0.3"/> charges <pause dur="0.2"/> but also expenses incurred in travelling for example <pause dur="0.3"/> to hospital <pause dur="0.2"/> to receive treatment <pause dur="1.2"/> but they must <pause dur="0.4"/> be related <pause dur="0.3"/> to the accident <pause dur="0.3"/> fairly common sense there <pause dur="1.9"/> but you can claim <pause dur="0.4"/> for medical care <pause dur="0.3"/> and importantly <pause dur="0.4"/> you can claim for private <pause dur="0.2"/> medical care <pause dur="2.3"/> and this was introduced quite early on <pause dur="0.3"/> in the nineteen-forty-eight act which you have

on your <pause dur="0.5"/> outline the Law Reform <pause dur="0.3"/> Personal Injuries Act <pause dur="0.4"/> under section two-four <pause dur="1.9"/> Law Reform Personal Injuries Act of nineteen-forty-eight <pause dur="0.4"/> section two-four <pause dur="0.9"/> stated <pause dur="0.3"/> that a plaintiff <pause dur="0.6"/> could <pause dur="0.8"/> charge <pause dur="0.3"/> from private <pause dur="0.2"/> medical <pause dur="0.5"/> # expenses <pause dur="0.6"/> and recover them <pause dur="0.2"/> despite the existence <pause dur="0.2"/> of the N-H-S <pause dur="2.4"/> so quite an important development there that you're not restricted to using <pause dur="0.3"/> N-H-S hospitals <pause dur="0.2"/> you can actually <pause dur="0.5"/> go for private <pause dur="1.7"/> hospitals <trunc>pri</trunc> and use private medicine <pause dur="0.7"/> and the act covers you for that <pause dur="6.5"/> however <pause dur="1.5"/> in nineteen-eighty-two an additional statute came in to effect which is the Administration <pause dur="0.3"/> of Justice Act <pause dur="1.2"/> the Administration of Justice Act of nineteen-eighty-two <pause dur="1.6"/> and this stated <pause dur="0.3"/> that if a saving had been made <pause dur="0.8"/> because <pause dur="0.3"/> an individual chose to go <pause dur="0.6"/> to at the public's expense to use an N-H <trunc>ho</trunc> S hospital for example <pause dur="0.3"/> then <pause dur="0.2"/> these savings <pause dur="0.2"/> should be set off <pause dur="0.3"/> against <pause dur="0.3"/> the loss of <pause dur="0.2"/> income <pause dur="2.9"/> so if a saving is made <pause dur="0.9"/> by an individual because <pause dur="0.4"/> they were <trunc>ma</trunc> maintained at public expense for example in a

hospital <pause dur="1.3"/> then the act tells us <pause dur="0.6"/> such savings <pause dur="0.6"/> must be set off <pause dur="0.4"/> against <pause dur="0.3"/> the loss of income <pause dur="6.6"/> now <pause dur="0.2"/> of course if you are suffering an injury you're not only # going to need to look at the issue of <pause dur="0.3"/> medical expenses <pause dur="0.2"/> there may be quite a lot of additional expenses <pause dur="0.2"/> for which you would want to <pause dur="0.2"/> claim <pause dur="1.2"/> and again <pause dur="0.2"/> these other pecuniary expenses <pause dur="0.3"/> can be added <pause dur="0.2"/> to the # claim there's nothing wrong <pause dur="0.2"/> with <pause dur="0.3"/> <trunc>no</trunc> # adding <trunc>dow</trunc> # noting on on your claim form <pause dur="0.4"/> a number of additional losses <pause dur="0.2"/> as long <pause dur="0.4"/> as they are reasonably incurred <pause dur="1.8"/> so for example <pause dur="0.4"/> cost of medicine <pause dur="0.2"/> and prescription charges <pause dur="0.3"/> will be <pause dur="1.2"/> covered if they're reasonable <pause dur="2.0"/> you might for example <pause dur="0.2"/> need <pause dur="0.2"/> to have provisional special medical equipment for example a wheelchair <pause dur="0.3"/> that is also covered <pause dur="2.5"/> in serious cases <pause dur="0.3"/> you might be required to adapt your home <pause dur="0.9"/> to introduce for example some form of lift <pause dur="0.4"/> and again <pause dur="1.6"/> the cost of such adaptation of the home <pause dur="0.2"/> will be covered <pause dur="0.2"/> under this heading of pecuniary losses <pause dur="6.0"/> you might actually need to seek alternative

accommodation that's quite possible <pause dur="0.3"/> maybe the house you're in which you're in <pause dur="0.6"/> two storeys three storeys you can't cope with it as a result of your disability <pause dur="0.2"/> and you <pause dur="0.2"/> you may have to move <pause dur="0.3"/> or to alter it <pause dur="1.4"/> again if it's reasonable <pause dur="0.2"/> that is covered under this heading <pause dur="2.5"/> one point to note however just on this point about alterations <pause dur="0.4"/> if a party does alter the house <pause dur="1.4"/> and this is quite reasonable <pause dur="0.7"/> but it increases the value of the home <pause dur="0.3"/> then you do need to give credit <pause dur="0.2"/> for <pause dur="0.2"/> this <pause dur="0.4"/> increase in value and that makes this calculation <pause dur="0.2"/> quite difficult <pause dur="0.9"/> so if you alter your home <pause dur="0.4"/> and that's quite reasonable in view of your injury <pause dur="0.4"/> but it increases the value <pause dur="0.3"/> then you do <pause dur="0.2"/> need to give account for it the plaintiff does have to give credit <pause dur="0.3"/> for this <pause dur="0.2"/> value this increase in value <pause dur="4.3"/> finally under this heading of other pecuniary losses <pause dur="0.6"/> you might # <pause dur="0.2"/> have <pause dur="0.6"/> future costs of care <pause dur="1.7"/> so if you have care at home <pause dur="0.5"/> for example you might need to get nursing care <pause dur="0.3"/> then you can also <pause dur="0.2"/> recover <pause dur="0.2"/> for these future costs of

care <pause dur="0.3"/> at home <pause dur="0.3"/> as long <pause dur="0.3"/> as again they are reasonable <pause dur="5.2"/> now clearly that would mean if you had <pause dur="0.2"/> specialist nurses coming into your home to look after you <pause dur="0.2"/> then you can charge for that under this claim you can add it to your claim <pause dur="0.7"/> but <pause dur="0.2"/> most people probably choose not to do that to have <pause dur="0.2"/> nurses may <pause dur="0.4"/> opt rather to have a member of the family <pause dur="0.2"/> looking after them so what happens <pause dur="0.5"/> if instead of a nurse <pause dur="0.3"/> a fully qualified nurse <pause dur="0.2"/> you have <pause dur="0.3"/> a member of your family <pause dur="0.3"/> choosing to look after you <pause dur="1.3"/> can you claim anything for them <pause dur="1.8"/> well yes you can <pause dur="0.6"/> the plaintiff is entitled <pause dur="0.4"/> to recover <pause dur="0.2"/> the <pause dur="0.7"/> proper and reasonable cost <pause dur="0.4"/> of supplying <pause dur="0.2"/> those <pause dur="0.2"/> needs <pause dur="1.6"/> so the plaintiff is entitled where a family member's looking after them <pause dur="0.4"/> to recover the proper <pause dur="0.4"/> and reasonable cost <pause dur="0.4"/> of supplying the needs <pause dur="3.3"/> so for example <pause dur="0.3"/> if a relative <pause dur="0.3"/> does have to give up work <pause dur="1.6"/> and will obviously lose out in terms of their earning capacity <pause dur="0.7"/> then those loss of earnings <pause dur="0.3"/> are recoverable <pause dur="1.4"/> provided they're not excessive <pause dur="0.2"/> and go well beyond <pause dur="0.2"/>

what it would cost to have nursing care <pause dur="2.0"/> so <pause dur="0.3"/> if your member of your family does <pause dur="0.2"/> give up work <pause dur="1.6"/> you can claim for loss of those earnings <pause dur="0.2"/> as long <pause dur="0.2"/> as they don't exceed <pause dur="0.3"/> the commercial cost <pause dur="0.2"/> of nursing <pause dur="0.2"/> care <pause dur="1.4"/> and you'll see on the sheet there is a case <pause dur="0.4"/> dealing with that <pause dur="0.3"/> and that's the case of Housecroft <pause dur="0.3"/> against <pause dur="0.4"/> Burnett <pause dur="0.2"/> nineteen-eighty-six decision <pause dur="0.2"/> which looked at this issue <pause dur="4.9"/> okay so that's the the main heads of damages that we've covered we saw that there were special damages <pause dur="0.2"/> and general damages <pause dur="0.2"/> special being the easier part <pause dur="0.3"/> to calculate <pause dur="0.3"/> general being more difficult because it was looking at post-trial <pause dur="1.3"/> we've seen <pause dur="0.2"/> that there's a pecuniary loss <pause dur="0.2"/> as well as <pause dur="0.2"/> non-pecuniary loss and of course pecuniary loss <pause dur="0.2"/> was mainly <pause dur="0.6"/> loss of earnings whereas non-pecuniary loss <pause dur="0.2"/> we were looking at such matters loss of amenity <pause dur="0.3"/> pain and suffering <pause dur="0.2"/> which we saw were quite difficult <pause dur="0.3"/> to calculate <pause dur="3.8"/> now that's all very well you might think well that's the end of the story in terms of calculation <pause dur="0.3"/> but in fact <pause dur="0.2"/> it is not <pause dur="1.1"/>

because <pause dur="0.3"/> most injured parties <pause dur="1.0"/> waiting for trial waiting for their settlement <pause dur="0.7"/> will be receiving some form of benefit from the state <pause dur="3.5"/> and we now get into quite a <pause dur="0.7"/> a nasty area if you like of the law <pause dur="2.2"/> the Conservative government introduced a piece of legislation in nineteen-eighty-nine called the Social Security Act <pause dur="1.3"/> to look into this issue or deal with <pause dur="0.2"/> the # the question of benefits what do you do <pause dur="0.3"/> when a party is receiving benefits from the state <pause dur="0.7"/> do you <pause dur="0.3"/> take back those benefits from that party <pause dur="0.2"/> from their compensation award <pause dur="0.5"/> or not <pause dur="2.7"/> and as i said in nineteen-eighty-nine <pause dur="0.2"/> the Conservative government <pause dur="0.4"/> introduced quite a contentious piece of legislation <pause dur="1.0"/> which had severe <pause dur="0.3"/> effects <pause dur="0.3"/> on a number of <pause dur="0.2"/> plaintiffs <pause dur="5.6"/> basically what they said in this # <pause dur="0.3"/> statute <pause dur="0.5"/> was that <pause dur="1.2"/> a certain percentage of the benefits most of the benefits would be clawed back <pause dur="0.2"/> by the state <pause dur="0.3"/> out of the compensation award <pause dur="3.5"/> so the plaintiff might anticipate a certain amount of money <pause dur="0.2"/> say twenty-thousand pounds <pause dur="0.4"/> but <pause dur="0.2"/> had received ten-thousand

pounds in benefits <pause dur="2.1"/> under this statute <pause dur="0.3"/> the state had the right <pause dur="0.3"/> to take back those benefits <pause dur="0.3"/> from the party <pause dur="0.3"/> claw them back <pause dur="0.3"/> to the state coffers <pause dur="0.6"/> and of course <pause dur="0.2"/> that meant <pause dur="0.2"/> in a lot of cases that the plaintiff was left either with <pause dur="0.3"/> very little money in my example ten-thousand pounds <pause dur="0.3"/> or none <pause dur="0.3"/> at all <pause dur="1.7"/> and as you know from <pause dur="0.2"/> from your first seminar <pause dur="0.2"/> when we were looking at how long it takes for cases to get to court <pause dur="0.3"/> we saw that often <pause dur="0.2"/> plaintiffs have been waiting for ages before <pause dur="0.3"/> they can actually get redress and compensation <pause dur="0.3"/> so they might have quite a few years <pause dur="0.2"/> of benefits <pause dur="0.2"/> and that mounts up <pause dur="0.3"/> and the state <pause dur="0.2"/> had the right under this act <pause dur="0.2"/> to claw them back <pause dur="1.4"/> so let's just take some examples <pause dur="0.2"/> of the impact of clawback <pause dur="1.4"/> these are very sort of basic <pause dur="0.5"/> overviews of what happened <pause dur="2.2"/> but gives you an idea of what we're talking about <pause dur="0.3"/><vocal desc="clears throat" iterated="n"/><pause dur="4.9"/><event desc="turns on overhead projector" iterated="n"/><vocal desc="clears throat" iterated="n"/><pause dur="5.9"/><kinesic desc="writes on transparency" iterated="y" dur="4"/> so under the nineteen-eighty-nine act <pause dur="0.4"/> and prior to ninety-seven because we'll see in a moment the legislation has changed again <pause dur="1.0"/> this is what

occurred <kinesic desc="writes on transparency" iterated="y" dur="40"/> let's say our <trunc>pain</trunc> plaintiff had fifty-thousand <pause dur="0.5"/> in damages <pause dur="3.8"/> everyone see that <pause dur="0.5"/> fifty-thousand pounds <pause dur="1.3"/> and of <trunc>s</trunc> let's assume that the benefits equalled <pause dur="0.8"/> fifteen <pause dur="1.9"/> now we're just making a very straightforward <pause dur="0.5"/> # calculation here that fifty minus fifteen of course is thirty-five-thousand <pause dur="1.7"/> but <pause dur="0.2"/> this did not all go <pause dur="0.2"/> to our <pause dur="0.2"/> plaintiff <pause dur="0.5"/> what happened was <pause dur="0.3"/> that that fifteen-thousand of the benefits <pause dur="0.3"/> was clawed back <pause dur="1.2"/> to a special agency <pause dur="0.2"/> called the Compensation <pause dur="0.2"/> Recovery <pause dur="0.2"/> Unit <pause dur="13.3"/> so even though our plaintiff has quite a <kinesic desc="writes on transparency" iterated="y" dur="12"/> substantial award in the damages <pause dur="2.1"/> he will only receive <pause dur="0.2"/> this smaller amount <pause dur="0.3"/> and this is of course <pause dur="0.2"/> paid <pause dur="0.3"/> by <pause dur="0.2"/> the defendant <pause dur="0.2"/> to the plaintiff <pause dur="4.7"/> now that's a very straightforward example <pause dur="1.1"/> the situation worsens of course <pause dur="0.3"/> if <pause dur="0.3"/> the plaintiff <pause dur="0.3"/> is found to be <pause dur="0.2"/> contributorily negligent <pause dur="3.7"/><kinesic desc="writes on transparency" iterated="y" dur="48"/> so for example if our plaintiff has been awarded <pause dur="0.4"/> twenty-thousand pounds <pause dur="0.3"/> in damages <pause dur="1.0"/> and there's quite a large reduction <pause dur="0.9"/> for contributory negligence <pause dur="3.8"/> and a <trunc>r</trunc> a receipt of benefits <pause dur="0.2"/> of ten-thousand pounds <pause dur="3.7"/>

then of course our poor old plaintiff has lost out fifty per cent already has ten-thousand <pause dur="1.1"/> in terms of the damages <pause dur="1.0"/> and <pause dur="0.9"/> the benefits go to the C-R-U <pause dur="0.4"/> so <pause dur="0.6"/> will be left with zero <pause dur="6.0"/> the only situation where there was a slight difference in the calculation <pause dur="0.3"/> was where a plaintiff <pause dur="0.4"/> actually received an award that was below two-and-a-half-thousand <pause dur="8.7"/><kinesic desc="writes on transparency" iterated="y" dur="5"/> so and everything above two-and-a-half-thousand <pause dur="0.7"/> the C-R-U was entitled to claw back the full amount of the benefits <pause dur="1.6"/> less than two-and-a-half-thousand <pause dur="0.2"/> they halved the benefits that they were taking back <pause dur="8.9"/><kinesic desc="writes on transparency" iterated="y" dur="6"/> so for example <pause dur="0.2"/> let's assume <pause dur="0.3"/> instead of a <kinesic desc="writes on transparency" iterated="y" dur="3"/> higher amount our plaintiff is awarded <pause dur="0.3"/> two-thousand pounds <pause dur="0.4"/> so he's below that two-thousand-five-hundred <pause dur="0.2"/> threshold <pause dur="2.0"/><kinesic desc="writes on transparency" iterated="y" dur="10"/> and has received <pause dur="0.3"/> one-and-a-half-thousand <pause dur="0.4"/> in benefits prior to the settlement of two-thousand <pause dur="2.9"/> instead of the C-R-U taking all of that as we saw previously they take the full amount <pause dur="0.3"/> they actually <pause dur="0.2"/> halved <pause dur="0.2"/> that amount because we're dealing here with such small amounts <pause dur="2.1"/>

so one-thousand-five-hundred doesn't go to the C-R-U instead <pause dur="2.3"/><kinesic desc="writes on transparency" iterated="y" dur="14"/> seven-hundred-and-fifty pounds half of the <pause dur="0.2"/> amount of benefit <pause dur="0.4"/> goes to the C-R-U <pause dur="2.3"/> and <pause dur="0.2"/> our plaintiff <pause dur="0.3"/> is <pause dur="0.5"/> given <pause dur="1.8"/> one-thousand-<pause dur="0.2"/>two-hundred-and-fifty <pause dur="5.4"/> so that basically was the situation <pause dur="0.5"/> prior to nineteen-ninety-seven following the nineteen-<pause dur="0.4"/>#-<pause dur="0.4"/>eighty-nine act <pause dur="0.3"/> that anything above two-and-a-half-thousand <pause dur="0.5"/> they would claw back the full amount of the benefits <pause dur="0.2"/> and the plaintiff would have to <pause dur="0.3"/> get whatever was left how <trunc>s</trunc> ever small <pause dur="0.6"/> below that slightly different you only halve the benefits <pause dur="0.3"/> because of the small amounts <pause dur="0.2"/> that we're talking about here <pause dur="2.7"/> now what happened and we'll see in a moment we'll have a videos # the impact was quite severe <pause dur="0.5"/> the plaintiffs were often <pause dur="0.4"/> bullied by insurance companies <pause dur="0.3"/> into accepting <pause dur="0.5"/> two-and-a-half-thousand as a settlement figure <pause dur="2.0"/> because they had had so much in terms of benefits <pause dur="0.3"/> that it really wasn't worth the effort <pause dur="0.3"/> of trying to pursue <pause dur="0.8"/> the defendant <pause dur="0.2"/> to get as large a claim as

possible they knew <pause dur="0.2"/> they would lose a large proportion <pause dur="0.3"/> in terms of <pause dur="0.4"/> benefit <pause dur="2.2"/> and we'll see in a moment <pause dur="0.2"/> that a number of plaintiffs were forced into accepting <pause dur="0.2"/> two-and-a-half-thousand pounds <pause dur="0.4"/> as <pause dur="0.5"/> a result <pause dur="1.6"/> so i'm now going to show you just a very quick clip <trunc>o</trunc> in the video and you'll see the impact of this legislation <pause dur="0.3"/> and then we'll talk about <pause dur="0.2"/> what the changes were introduced by the Labour government <pause dur="0.2"/> in nineteen-ninety-seven </u><gap reason="break in recording" extent="uncertain"/><event desc="starts video" iterated="n" n="nm1151"/><kinesic desc="video plays" iterated="y" dur="14:00"/><event desc="stops video" iterated="n" n="nm1151"/><gap reason="break in recording" extent="uncertain"/> <u who="nm1151" trans="pause"> so you can see <trunc>f</trunc> quite clearly i think from from that <pause dur="0.2"/> short clip the impact and the quite serious impact that the legislation did have <pause dur="0.4"/> on victims <pause dur="0.6"/> and <pause dur="0.3"/> also i hope you understood the point about the two-and-a-half-thousand <pause dur="0.4"/> that they were offering <pause dur="0.4"/> basically obviously if the claim was # <pause dur="1.4"/> # <pause dur="0.5"/> say thirty-thousand as # the example given in the the video <pause dur="0.2"/> she was going to lose a substantial or most of that amount <pause dur="0.3"/><kinesic desc="writes on transparency" iterated="y" dur="4"/> from the claim <pause dur="0.3"/> then what was happening was that insurance companies <pause dur="0.3"/> were offering this figure of two-and-a-half-thousand <pause dur="0.2"/> which was unaffected <pause dur="0.2"/> so basically <pause dur="0.2"/>

lots of cases were settled <pause dur="0.3"/> in this quite <trunc>desi</trunc> derisory amount <pause dur="0.4"/> if you take into account the actual value of some of the claims i think she said <pause dur="0.3"/><kinesic desc="writes on transparency" iterated="y" dur="17"/> originally it was quoted at being <pause dur="0.3"/> fifty-thousand pounds <pause dur="0.7"/> the solicitor suggested that she would get <pause dur="0.3"/> thirty-thousand <pause dur="0.3"/> and all of that <pause dur="0.3"/> was going to go <pause dur="0.3"/> in the benefits <pause dur="1.7"/> in any case <pause dur="0.8"/> so <pause dur="0.6"/> pressure as indicated from insurance companies to accept the minimum that would be unaffected and that was the two-and-a-half-thousand pounds <pause dur="0.3"/> so quite a few people were settling for <kinesic desc="indicates point on transparency" iterated="n"/> this amount because they were really unsure <pause dur="0.3"/> as to the amount they would <pause dur="0.3"/> get i mean the solicitor may have got it wrong and maybe that was bad advice <pause dur="0.3"/> you know maybe they should have pushed for the fifty-thousand pounds <pause dur="0.3"/> and in that case they would have <pause dur="0.3"/> they would have got twenty-thousand we can assume <pause dur="0.4"/> but also <pause dur="0.4"/> do note as the film said <pause dur="0.6"/> you would still have your benefits deducted <pause dur="0.2"/> if it had been appealed and again that was a second negative thing about the legislation <pause dur="0.4"/> that <pause dur="0.4"/> if you were # the

the case was appealed <pause dur="0.3"/> then you were still having benefits and they could still be deducted <pause dur="0.2"/> so quite substantial losses in some cases <pause dur="2.2"/> in its manifesto though the Labour Party did say <pause dur="0.4"/> as a result of the # petitions <pause dur="0.2"/> that it would change this legislation and fortunately <pause dur="0.2"/> it did do so in <trunc>ninety-sev</trunc> nineteen-ninety-seven <pause dur="3.8"/> and you'll see on your handout at eight <pause dur="0.2"/> the name of the act was The Social Security Recovery of Benefits Act <pause dur="0.2"/> of ninety-seven <pause dur="0.3"/> which came into force from October <pause dur="0.2"/> nineteen-ninety-seven <pause dur="0.2"/> and there are also associated <pause dur="0.2"/> regulations <pause dur="0.2"/> with the statute <pause dur="2.4"/> now the important difference between this act <pause dur="0.2"/> and the previous nineteen-eighty-nine act <pause dur="0.3"/> is that <pause dur="0.2"/> general damages are said to be <pause dur="0.2"/> ring fenced <pause dur="0.5"/><kinesic desc="writes on transparency" iterated="y" dur="10"/> so this # important word ring fencing <pause dur="9.6"/> and that effectively means <pause dur="0.2"/> we're going back really to a pre-nineteen-eighty-nine position <pause dur="0.3"/> in that parts of the general damages <pause dur="0.2"/> are protected <pause dur="0.2"/> that they cannot be targeted in terms of <pause dur="0.4"/> <trunc>de</trunc> # deducting these benefits <pause dur="0.3"/> so that benefits must be set off <pause dur="0.2"/>

against <pause dur="0.3"/> certain heads of special damages <pause dur="0.8"/> so ring fencing means <pause dur="0.2"/> there's a protection for some of the general damages <pause dur="0.4"/> and if you do have benefit <pause dur="0.2"/> then you take them off <pause dur="0.2"/> certain heads <pause dur="0.2"/> of the special damages <pause dur="0.8"/> and you're left really with <pause dur="0.3"/> a large part of your general damages as a result being intact and if you remember <pause dur="0.5"/> in the clip <pause dur="0.5"/> there was a <pause dur="0.2"/> a graph shown as to the pre-nineteen-eighty-nine position <pause dur="0.3"/> that you've got a smaller part of the compensation in general damages being affected <pause dur="0.3"/> that's effectively what's <pause dur="0.3"/> happening <pause dur="0.2"/> here <pause dur="3.7"/> so let's take an example to explain <pause dur="0.2"/> the difference between <pause dur="0.2"/> the nineteen-eighty-nine legislation where we saw most of the benefits coming off <pause dur="0.5"/> and this new act <pause dur="3.8"/><kinesic desc="writes on transparency" iterated="y" dur="1:30"/> let's assume first of all that our <trunc>de</trunc> general damages <pause dur="0.4"/> are <pause dur="0.4"/> five-thousand pounds <pause dur="4.2"/> pretrial loss of earnings <pause dur="3.9"/> <trunc>le</trunc> <pause dur="0.6"/> we will have a figure of fifteen-thousand <pause dur="0.2"/> <vocal desc="cough" iterated="n"/><pause dur="2.3"/> past care costs let's assume <pause dur="0.4"/> are five-thousand <pause dur="3.0"/> so that's a bit of <trunc>nu</trunc> nursing costs <trunc>th</trunc> those types of expenses which we mentioned earlier <pause dur="4.8"/> and that there

may be # loss in the future as a result of this injury in terms of <pause dur="0.3"/> maybe # alterations <pause dur="0.5"/> et cetera <pause dur="0.3"/> issues arising as a result of the injury <pause dur="0.9"/> this totals <pause dur="0.2"/> surprise surprise fifty-thousand pounds <pause dur="2.3"/> and the benefits received <pause dur="4.8"/> let's assume a <trunc>c</trunc> incapacity benefit <pause dur="1.5"/> of twelve-and-a-half <pause dur="2.1"/> and <pause dur="0.2"/> attendance allowance <pause dur="5.5"/> of seven-and-a-half <pause dur="0.5"/> doesn't matter really what these benefits are we're just giving some form of figure <pause dur="0.3"/> to the benefits <pause dur="2.8"/> so in total <pause dur="0.2"/> our benefits are twenty-thousand pounds <pause dur="3.4"/><vocal desc="cough" iterated="n"/><pause dur="0.5"/> basically <pause dur="0.2"/> we set off against certain <pause dur="0.2"/> heads of damage <pause dur="2.0"/> and twelve-and-a-half-thousand <pause dur="0.3"/> can be set off <pause dur="0.3"/> against <pause dur="0.8"/><kinesic desc="writes on transparency" iterated="y" dur="19"/> loss of earnings <pause dur="6.1"/> and the statute tells us <pause dur="0.2"/> which # <pause dur="0.3"/> benefits are set off against which heads <pause dur="0.7"/> so incapacity we are told <pause dur="0.2"/> is set off against loss of earnings <pause dur="3.4"/> whereas <pause dur="1.8"/><kinesic desc="writes on transparency" iterated="y" dur="15"/> attendance allowance <pause dur="0.8"/> is actually set off against the past care costs <pause dur="11.7"/> now if we look at past care <pause dur="0.3"/> we see that we've only got five-thousand pounds <pause dur="0.3"/> under past care <pause dur="0.6"/> but we're told under the legislation we can only set off <pause dur="0.2"/> against past care costs <pause dur="0.3"/> so in in fact <pause dur="0.2"/>

we can only set off <kinesic desc="writes on transparency" iterated="y" dur="2"/> against <pause dur="0.2"/> five-thousand pounds <pause dur="1.4"/> effectively then we've made a gain in terms of benefits because the total of course that we can set off <pause dur="0.3"/> is twelve-and-a-half <pause dur="0.3"/> plus five-thousand <pause dur="0.3"/> which means <pause dur="0.2"/><kinesic desc="writes on transparency" iterated="y" dur="8"/> the total we're settling off <pause dur="0.5"/> is <pause dur="0.3"/> seventeen-<pause dur="0.3"/>and-a-half-thousand <pause dur="1.5"/> okay <pause dur="0.2"/> so the legislation tells us <pause dur="0.3"/> which <pause dur="0.3"/> parts <pause dur="0.3"/> of the <pause dur="0.2"/> damages <pause dur="0.2"/> awards can <pause dur="0.4"/> be affected <pause dur="0.4"/> and in the case of incapacity it's loss of earnings <pause dur="0.3"/> in the case of attendance allowance <pause dur="0.2"/> it's past care and fortunately here <pause dur="0.3"/><kinesic desc="writes on transparency" iterated="y" dur="1"/> we've actually <pause dur="0.4"/> got a smaller figure <pause dur="0.2"/> so we've we've done a little bit better <pause dur="0.4"/> by the setting off in any case <pause dur="7.9"/><vocal desc="cough" iterated="n"/> as a result then <pause dur="0.3"/> what happens is that our defendant <pause dur="0.3"/><kinesic desc="writes on transparency" iterated="y" dur="39"/> is required to pay <pause dur="9.9"/> fifty-thousand minus the set off <pause dur="0.3"/> which is <pause dur="0.4"/> thirty-two-and-a-half-thousand <pause dur="0.5"/> to the plaintiff <pause dur="4.6"/> and <pause dur="3.1"/> the total that he has actually got in benefits there is twenty-thousand <pause dur="0.3"/> so the defendant still has to pay <pause dur="0.3"/> twenty-thousand <pause dur="0.4"/> to the <pause dur="0.4"/> state <pause dur="4.2"/> so what has happened effectively by this <pause dur="0.3"/> is we've protected

parts of our <pause dur="0.4"/> plaintiff's claim <pause dur="0.5"/> he does better than he would have done under the previous legislation because we can't set everything off as we've seen here <pause dur="1.6"/><kinesic desc="indicates point on transparency" iterated="n"/> the defendant in fact <pause dur="0.2"/> ends up <pause dur="0.3"/> paying more money <pause dur="0.2"/> as a result <pause dur="0.7"/> so he's paid here <pause dur="0.4"/> fifty-two-<pause dur="0.3"/>and-a-half-thousand <pause dur="0.7"/><kinesic desc="writes on transparency" iterated="y" dur="2"/> in total <pause dur="0.5"/> for a claim <pause dur="0.2"/> which is worth <pause dur="0.3"/> fifty <pause dur="0.3"/> so rather than <pause dur="1.2"/> targeting the plaintiff and making the plaintiff suffer a little bit more under this legislation <pause dur="0.3"/> we're protecting the plaintiff a little bit <pause dur="0.4"/> and <pause dur="0.3"/> asking the defendant <pause dur="0.2"/> to pay <pause dur="0.2"/> more money <pause dur="0.2"/> so in the end <pause dur="0.7"/> a better piece of legislation <pause dur="0.2"/> and <pause dur="0.5"/> more pro plaintiff <pause dur="1.1"/> okay are there any questions in relation to <pause dur="0.3"/> what we've done today <pause dur="2.1"/> i'm sorry if you couldn't understand the language in the video hope you got through the accents on that <pause dur="1.8"/> okay thanks very much