The question was whether the attendance and mobility allowances which were payable to the plaintiff pursuant to statute should be deducted from damages she had received for personal injury.
Held: They should be. Damages for negligence are intended to be ‘purely compensatory’: it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character, being the measure on the one hand of the injured plaintiff’s consequential loss of earnings, profits or other gains which he would have made if not injured, or on the other hand, of consequential expenses to which he has been and will be put which, if not injured, he would not have needed to incur, the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s losses and expenses in arriving at the measure of his damages.’ The basic rule is that the court must measure the net consequential loss and expense. To the basic rule there are well-established exceptions, although they are not always ‘precisely defined and delineated’. The rule is ‘fundamental and axiomatic and the exceptions to it which are only to be admitted on grounds which clearly justify their treatment as such’ The benevolence exception applies where: ‘moneys [are] received by the plaintiff from the bounty or benevolence of third parties motivated by sympathy for his misfortune.’ and ‘In the end the issue in these cases is not so much one of statutory construction as of public policy. If we have regard to the realities, awards of damages for personal injuries are met from the insurance premiums payable by motorists, employers, occupiers of property, professional men and others. Statutory benefits payable to those in need by reason of impecuniosity or disability are met by the taxpayer. In this context to ask whether the taxpayer, as the ‘benevolent donor,’ intends to benefit ‘the wrongdoer’ as represented by the insurer who meets the claim at the expense of the appropriate class of policy holders, seems to me entirely artificial. There could hardly be a clearer case than that of the attendance allowance payable under the Act of 1975 where the statutory benefit and the special damages claimed for cost of care are designed to meet the identical expenses. To allow double recovery in such a case at the expense of both taxpayers and insurers seems to me incapable of justification on a rational ground. It could only add to the enormous disparity, to which the advocates of a ‘no-fault’ system of compensation constantly draw attention, between the position of those who are able to establish a third party’s fault as the cause of their injury and the position of those who are not.’
and as to the availability of benefits allowances: ‘If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff’s losses and expense in arriving at the measure of his damages. . . . I see no reason why the whole of the mobility allowance should not be regarded, just as the attendance allowance, as available to meet the cost of her care generally and thus as mitigating the damages recoverable in respect of the cost of that care.’
Lord Bridge of Harwich
[1989] AC 807, [1988] UKHL 9
Bailii
England and Wales
Citing:
Cited – Westwood v Secretary of State for Employment HL 1985
The house considered the benevolence rule: ‘I do not see any analogy at all between the generosity of private subscribers to a fund for the victims of some disaster, who also have claims for damages against a tortfeasor, and the state providing . .
Cited by:
Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – Dimond v Lovell CA 29-Apr-1999
Mrs Dimond had a car accident as a result of Mr Lovell’s negligence and sought to recover from him the cost of the hire of a replacement vehicle while her car was being repaired. Under clause 5 of the hire agreement the hire company had the conduct . .
Cited – Pirelli General Plc and others v Gaca CA 26-Mar-2004
The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
Held: McCamley was no longer good . .
Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – Clenshaw v Tanner and others CA 27-Nov-2002
The claimant was a cyclist. He passed along inside a line of traffic, and collided with a lorry turning left into a petrol station ahead of him, suffering serious injuries. He appealed against a finding that the lorry driver had signalled and that . .
Cited – Longden v British Coal Corporation HL 13-Mar-1997
The plaintiff was injured whilst at work in one of the defendant’s collieries. The House considered the deductibility from damages awarded for personal injury of a collateral benefit.
Held: The issue of deductibility where the claim is for . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Lists of cited by and citing cases may be incomplete.
Damages, Personal Injury
Updated: 05 December 2021; Ref: scu.183222