Lloyd's Maritime and Commercial Law Quarterly
PERSONAL INJURY COMPENSATION: HOW MUCH IS ENOUGH?
Law Com. No. 225
Three years ago the Lord Chancellor asked the Law Commission to embark upon a challenging programme of law reform. The task is onerous because it includes consideration of the coherence and effectiveness of our damages system, especially in personal injury cases. So far this has resulted in reports on two areas. First, recommendations have been made on structured settlements, and interim and provisional awards.1 Second, an empirical study of the compensation experiences of victims of personal injury has been published.2 It is the latter that has prompted this Comment.
The Commission promises further reports soon. These will deal with a variety of topics including punitive damages, compensation for bereavement and deduction of “collateral” benefits from awards. Recently it has also agreed to examine the principles behind recovery for nervous shock.3 If these deliberations—together with those of Lord Woolf on matters of civil procedure—were all to result in legislation, no doubt we would be faced with the most radical revision of our compensation system since the 1940s. Last summer the chairman of the Commission pleaded for its law reform proposals to be put before Parliament more frequently than in the immediate past.4 Whether the various reports of the Law Commission or Lord Woolf will eventually result in legislation remains to be seen. They have both been set ambitious tasks.
Reforms of criminal justice frequently have taken place following empirical review of how that system operates in practice. However, the changes proposed for civil justice have less often been supported by social science studies. In particular, such work has only rarely featured in proposals for reform put forward by the Law Commission. It generally does not have the funding to support such work. However, for its review of damages, it was able to obtain money from the Lord Chancellor’s Department to commission Professor Hazel Genn to conduct an empirical study of the experiences and circumstances of accident victims several years after receiving damages for their injuries. How Much Is Enough? is the result. It is a detailed and thorough piece of work, adding considerably to our knowledge of how the system actually works and providing an invaluable reference tool. Persona] injury litigation is brought to life by the verbatim accounts of those who are affected most by it, for the report is based upon structured interviews with 761 people who received compensation in the five years from 1987–1991 inclusive. In about one in eight of these cases the victim’s account of the litigation process and outcome is measured against the relevant plaintiff solicitor’s file.
Although the particular focus of the report is upon the use made of compensation and whether recipients still consider it adequate to meet their changing needs, it also
1. See Law Commission, Structured Settlements and Interim and Provisional Damages: L.C.C.P. No. 125 (1992), considered in R. Lewis, Structured Settlements: The Law and Practice (1993), Chap. 17, and the subsequent Report: Law Com. No 224 (1994).
2. Law Commission, Personal Injury Compensation: How Much is Enough? A study of the compensation experiences of victims of personal injury: Law Com. No. 225 (1994).
3. Since this Comment was written, the Law Commission has published L.C.C.P. No. 137: Liability for Psychiatric Illness (1995).
4. See Sir Henry Brooke’s evidence to the House of Commons Home Affairs Committee as reported in The Times, 24 May 1994.
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