Human Rights, Property and the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill in the Supreme Court
| DOI | 10.3366/elr.2015.0297 |
| Pages | 373-378 |
| Author | |
| Date | 01 September 2015 |
| Published date | 01 September 2015 |
Where a person in the UK pays compensation in respect of physical or psychological injury to another, they also become liable for NHS charges in relation to the treatment of that injury.
Health and Social Care (Community Health and Standards) Act 2003 s 150.
The Bill proposed creation of a similar liability in respect of Welsh NHS charges for treatment of asbestos-related diseases. Section 2 sought to impose liability on any person who paid compensation for an asbestos-related disease. Such “compensators” would typically be employers who had negligently exposed the sufferer to asbestos during his working life. Section 14 proposed that, where the payment made by a compensator was covered by an insurance policy, the policy was to be treated as covering liability for NHS charges. This would have applied to policies issued both before and after the section came into forceIn the Supreme Court judgment, the majority interpreted the legal effect of these provisions somewhat differently from the minority. The majority view, set out by Lord Mance, was that the Bill would impose a new quasi-tortious statutory duty of care on compensators, together with a new contractual liability on the insurers of those compensators.
Para 6.
The minority view set out by Lord Thomas considered that, since the cost of medical care is an established head of recovery in a compensation claim, the Bill imposed no new liability on compensators. Rather, it removed the benefit formerly enjoyed by compensators of that cost being met by the state – a benefit that compensators could have had no legitimate expectation would continue. The “machinery” for the collection of these costs placed responsibility directly on compensators, rather than on those in receipt of treatment who might then recover the costs from compensators, in order to maximise efficiency and minimise stress for sufferers.Para 77; also paras 96–102.
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