1
Clinical Negligence And The NHS Refusal To
Structure Settlements With Profit
RICHARD LEWIS*
This article examines the wider context of recent litigation which challenged
the form in which damages for personal injury are paid. It focuses upon a test case
that is of particular importance to claimants severely injured as a result of clinical
negligence. R v Liverpool Health Authority et al ex parte Hopley1 involves judicial
review of a Health Authority's refusal to pay damages via a structured settlement
based on a with profits formula rather than one linked to rises in the Retail Prices
Index. To what extent could the reasons for refusing such a settlement be held up to
judicial scrutiny, and the relative merits of the different forms of structure be
evaluated? Could the claimant question the excessive paternalism and self- interest,
which were alleged to lie behind the Authority’s decision? In examining different
forms of structured settlement this article highlights major issues relating to the
future of the damages award. It discusses the burden of litigation costs currently
being faced by the NHS. Finally, it considers the reforms being contemplated by the
Lord Chancellor’s Department and others, some of which are to become law when
the present Courts Bill completes its Parliamentary stages.
* Cardiff Law School, Cardiff University. I am grateful to various academic colleagues and
practitioners for their comments.
1 [2002] All ER 459, [2002] Lloyd's Rep Med 494, [2002] EWHC 1723.
http://blog-purchasestructuredsettlements.blogspot.com/
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The Attractions of Structured Settlements
Until 1988 damages at common law were always paid by means of a lump
sum, never a pension. It did not matter that the compensation was for losses that
might be suffered in the future: both the monthly wage that the accident victim may
have lost, and the continuing costs of care that would have to be met, were
compensated by one la