17th February 2023

Some of the most depressing case reports to read are tortuous claims when someone has had a life-changing injury.

The case reports are depressing for both what they say and what they do not say.

A person has a horrific injury – such as in this recent case report:

“He sustained catastrophic injuries which have rendered him paraplegic.”

The case report in such a case details the background to the injury and then – because such cases are invariably claims in negligence – there is often elaborate and somewhat artificial consideration of whether there was a duty of care and any warning, and whether there was any contributory negligence and fault.

Sometimes as in the case linked to above, the case can touch on obscure legal provisions which neither party actually had any idea about at the time.

And because there is a case report that means that there is a dispute – and almost invariably (though I do not know about the linked case) the case is contested because an insurer does not want to admit liability.

In other words: the case is really about who (if anyone) pays for the ongoing medical needs of the poor claimant.

Knowing this, it seems unfair that the monies for a person’s medical needs when there has been a catastrophic injury should hinge on whether a piece of evidence had been put in, or a finding of a fact, or the application of some hitherto unknown law.

The person’s needs are still the same.

Reading such judgments is like watching a ball on roulette wheel.

And it is rarely the resources of the nominal defendant which are at stake.

As my tort lecturer said once: the law of tort is really a branch of the law of insurance.

Some jurisdictions, such as New Zealand, have a no fault compensation fund for those who suffer injuries.

This is a better (and no doubt all-round cheaper) way than the dismal case reports where one sees a judge making finely balanced decisions that mean whether someone has their medical needs properly paid for or not.

There is a role for the law of negligence in other matters, but it seems out of place here.

****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.