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Recovery of state benefits from tort damages: legislating for or against the welfare state?

Lewis, Richard Kurt 2012. Recovery of state benefits from tort damages: legislating for or against the welfare state? In: Arvind, T. T. and Steele, Jenny eds. Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change, Oxford: Hart Publishing, pp. 285-302.

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This article deals with statutes in the UK which have established a system for recovering from damages in tort certain state benefits obtained by those who have suffered personal injury. These state benefits may take the form of social security monies or health care services. These are "collateral benefits" to the award of damages. The focus is upon the Social Security (Recovery of Benefits) Acts 1989 and 1997 which radically revised the previous haphazard system whereby some, but not all, benefits were set off by defendants to reduce the amount of damages that they had to pay, and yet the state failed to recover any of the monies it had paid claimants. Now we have a Government agency which is able to recover these benefits and return them to the public purse. Defendants are no longer subsidised by the state, and claimants are less likely to be over-compensated by receiving monies from both public and private sources. However, the state has acquired a direct interest in all personal injury claims. Tort law has thus been entrenched in our compensation system in spite of the many criticisms that could be made of it by supporters of a more inclusive welfare state. The article traces the origin of these arguments about what should be the relationship between the two systems of compensation. It looks at the debates concerning the future of the law of tort following the considerable increase in the scope of welfare provision after 1945. The potential overlap could have led to the entire replacement of tort law for personal injury. The post-war legislature and later the judiciary had to consider what role tort should play following the increase in state benefits. Compromises were reached in the Law Reform (Personal Injuries) Act 1948 which allowed tort not only to continue, but later to flourish. The recovery of benefits statutes are placed here in their wider policy context. In particular, the political climate which led to their enactment is considered. The often uneasy relationship between tort law and the welfare state is discussed. The question posed in the title to this article in effect asks whether the reforms merely made provision for the two systems of compensation to operate more effectively together, or whether they enabled tort to become entrenched at the expense of a welfarist approach which would have laid more emphasis upon community responsibility for injury rather than the wrongdoing of individuals.

Item Type: Book Section
Date Type: Publication
Status: Published
Schools: Law
Subjects: K Law > K Law (General)
Uncontrolled Keywords: Tort law ; Damages ; Personal injury ; Accident compensation ; Collateral benefits ; Welfare state ; Politics of law
Publisher: Hart Publishing
ISBN: 9781849461405
Related URLs:
Date of First Compliant Deposit: 26 February 2019
Last Modified: 26 Feb 2019 14:27

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