The Medical Defence Union (MDU) has recently renewed its proposal that a law dating back to 1948 be repealed. It also wants to see caps imposed on the level of damages awarded for future care.
Section 2(4) of the Act provides that :-
“In an action for damages for personal injuries….there shall be disregarded in determining the reasonableness of any expenses the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the NHS.”
So what would be the consequences of a repeal?
Even if s2(4) of the Act were repealed a Court would still compare the quality of the proposed private provision and the proposed state provision. It would also have to consider to what extent the quality and extent of future state provision could be guaranteed. If a Claimant required 24 hour care within his or her home, what would the NHS provide? Would it provide suitable equipment, nursing care, transport etc? And would it guarantee to do so for the rest of the Claimant’s life?
To repeal the Act would allow any Defendant, including insured motorists, to avoid paying compensation by saying that of course the private provision is disproportionate because the Claimant can get the same provision for free through the NHS. That might lower the compensation awards but it would simply shift the burden from insurers to the state.
The MDU is not “the state” so repeal of the Act would be particularly advantageous to its members if not the taxpayer.
Image by SMLP under creative commons
