Recovery Of NHS Accident Costs: Tort As Vehicle For Raising Public Funds

03/01/2006 Recovery Of NHS Accident Costs: Tort As Vehicle For Raising Public Funds Richard Lewis Professor of Law, Cardiff Law School The Road Traffic (NHS Charges) Act 1999 and its regulations 1 enables a hospital or trust which provides NHS treatment for a victim of a road accident to reclaim its costs from a compensator who pays damages to the person injured. The scheme is parasitic upon that set up ten years ago to enable the state to recovery the social security benefits paid to accident victims up to the date of the settlement of their tort claim. 2 However, the NHS scheme differs in that it applies only to injuries caused by motor vehicles, and the costs recovered are returned to the hospitals which provided the treatment whereas the social security benefits recovered go directly into Treasury coffers. The legislation is of considerable importance in the administration of the tort system for its procedures must be taken into account in the settlement of all personal injury claims. The reform is also significant in confirming an approach to dealing with the collateral benefits which departs from notions of community responsibility for injury, and entrenches a discredited liability system as a means of raising public revenue. An injured person has never been able to obtain damages for NHS treatment received free of charge. Nor, until recently, did those hospitals and others 1 The Road Traffic (NHS Charges) Regulations 1999 SI No 785, and the Road Traffic (NHS Charges) (Reviews and Appeals) Regulations 1999 SI No 786. 2 Now revised and set out in the Social Security (Recovery Of Benefits) Act 1997. See generally R. Lewis, Deducting Benefits From Damages For Personal Injury (1999).

providing the care seek to recover in an organised way from the compensator anything like the full costs involved. (The old system for recovering limited sums is described under the next heading). Where free health care was provided as a collateral benefit the law traditionally adopted the policy of reduction: the plaintiff could obtain no damages for treatment for which he did not pay, and the tortfeasor was not required to reimburse the collateral source. The tortfeasor thus avoided paying for the full costs of the accident. However, this policy of reduction has now given way to that of recoupment: the 1999 Act requires the cost of treatment to be repaid under a tariff scheme which makes use of the system already in place to recover social security benefit. Both schemes of recovery are now run alongside one another and are administered by the DSS s Compensation Recovery Unit (CRU) based in Newcastle. Although recovery of NHS costs affects only road accident victims, these comprise the largest group of tort claimants for they bring between forty and sixty per cent of all personal injury cases. 3 The change does not directly affect the victims themselves because, unlike social security recovery, there is no provision to allow the compensator to reduce damages to take account of the repayments. However, the reform indirectly will affect settlements because it increases by up to 10,000 the final bill the compensator must pay. As a result in some cases liability will be contested more vigorously than it otherwise would have been. 3 Forty per cent is the figure in the Report of the Royal Commission on Civil liability and Compensation for Personal Injury, Cmnd. 7054 (1978) vol 2, table 11. Similarly see P. Pleasence, Personal Injury Litigation In Practice (1998) p 48 noting that in several recent personal injury studies road accidents have comprised about half of the cases. In figures supplied to the author from DSS sources for the six months to the end of September 1998 road accidents comprised 60 per cent of the 323,000 claims notified to the Compensation Recovery Unit. Road accident victims constitute an even higher proportion of those who suffer serious injury. Of the 153 cases settled by insurers for 150,000 or more in the two years from 1987, 73 per cent involved people injured in road accidents. P. Cornes, Coping With Catastrophic Injury (1993). 2

The new scheme adds another substantial tier to the recovery of compensation cake. Recovery of NHS costs is expected to raise between 123 and 165 million a year, 4 a sum which must be added to the 200 million of benefits currently being recovered. 5 There is no doubt that, within its own terms, the NHS scheme is cost effective for, as against the amounts it expects to recover, it will increase CRU costs by only 1.4 million a year. 6 The additional administrative burden it places upon motor insurers is also limited. 7 However, the full effects of the Act are estimated to increase the cost of motor insurance by 2 to 3 per cent, thus adding a flat rate of between 6 to 9 to the cost of a policy. All motorists, and many would argue the public as a whole, will pay in the end. 1. THE OLD SYSTEM FOR RECOVERING NHS COSTS Beginning in 1934 - some time before the introduction of the NHS - doctors and hospitals were able to claim statutory payments from those responsible for road accidents for any emergency treatment and hospital care given. 8 Two charges were possible: ρ An emergency treatment fee could be claimed from the user of the vehicle irrespective of whether there was fault or any other liability for the accident. 4 The Regulatory Appraisal Of The Road Traffic (NHS Charges) Bill (1998) annex 2. 5 There will thus be an increase of between 60 and 80 per cent in the amount recovered. According to information supplied to the author by the DSS Analytical Services Division, 201.5 million in benefits was recovered in the financial year 1998-99. For a history of the amounts recovered see Lewis, Deducting Which Benefits From What Heads Of Damage? [1999] J Personal Injury Litigation 11. 6 The Regulatory Appraisal Of The Road Traffic (NHS Charges) Bill (1998) para 10.5. 7 The Association of British Insurers estimated an additional 2 million, raising the cost of notifying each claim by about 10. 8 The charges were contained in the Road Traffic Act 1930 but were not levied until 1934. 3

Although the modest fee - which never rose beyond 21 - was covered by the motor insurance policy, 9 it was often resented by the motorist to whom the bill was first sent. The 1999 Act abolishes the right of NHS hospitals to make this charge. 10 ρ Hospital treatment - whether as an in-patient or out-patient - was a recoverable cost but only if an insurer made a compensation payment for personal injury. Costs were individually assessed, but were not to exceed a maximum of 3,000. 11 The 1999 Act specifies set charges, raises the maximum to 10,000, and centralises the collection system to make it much more efficient. There were considerable administrative problems in recovering the charges that could be made under the old scheme. Collection was left in the hands of the local hospitals, trusts or doctors themselves. This decentralised approach meant that recovery varied considerably, being officially described as patchy, 12 and even as a shambles. 13 Relevant patients had to be identified and the progress of their legal action monitored over some years. The cost of collection was extremely high compared to the limited amount that could be recovered, consuming about a quarter of the money obtained from the insurers. 14 The cost- 9 Because of the Road Traffic Act 1988 s. 158. 10 However, it can still be made by General Practitioners or, for example, retired or off-duty hospital doctors. 11 By the Road Traffic Accidents (Payment for Treatment) Order 1995 SI No 889 for patients receiving out-patient treatment hospitals could charge up to 295, and for those treated as inpatients up to 2949. These increased the sums specified in the Road Traffic Act 1988 s. 157. 12 Para 4 of the Explanatory Notes to the 1999 Act. 13 Frank Dobson, Secretary of State for Health, HC Deb vol 322 col 161 (8 December 1998). 14 Report of the NHS Scrutiny Programme, The Collection Of Fees By Health Authorities Under The Road Traffic Act 1972 (DHSS 1985). 4

effectiveness of the operation was therefore called into question: overall only a small percentage of the potential revenue was being recovered and this was being done at a high cost. 15 Although Government urged hospital trusts to improve their arrangements to collect the charges, it was not until 1996 when the Law Commission issued its Consultation Paper on medical expenses that a more extensive system for recovering the costs of treatment was canvassed. 16 The Commission proposed extending the powers to collect charges so as to include all tortfeasors causing personal injury, and not just insurers who were responsible for road accidents. Without waiting for the Law Commission to make its final report, the new Labour government announced in its first budget in July 1997 that it intended to recover from insurers the full cost of treatment. However, this was to be done only for the existing class of cases for which some payment was already required, that is, for those involving road accidents. 17 Eighteen months later a Bill was introduced to Parliament and the Road Traffic (NHS Charges) Act came into force in April 1999. Its effect is to substitute a centralised recovery system for the haphazard local and limited system which previously applied. The right of individual NHS hospitals and trusts to levy payment has been removed. In its place insurers making a compensation payment in road accident cases are now 15 According to the Regulatory Appraisal Of The Road Traffic (NHS Charges) Bill (1998) para 5 13 million was recovered by trusts and hospitals in England in 1995-96, whereas the full cost of treatment was estimated as 108 to 145 million. Even with the limits on recovery under the old scheme it was estimated that the NHS was losing between 37 and 52 million a year. See also HC Deb 22 July 1997 col 745. In 1996-97 of the 429 NHS trusts 190 claimed nothing from insurers. 16 Consultation Paper No 144 Medical, Nursing And Other Expenses (1996) para 3.19 et seq. See Leech, Recoupment Of NHS Medical Treatment Costs After Compensation Claims (1997) 147 New L J 663. 17 Hansard, HC Deb 2 July 1997, col 315. 5

required to apply to the CRU for a certificate of NHS charges, and pay the required amounts within 14 days of paying any damages to the claimant. The charges themselves have also been increased to reflect more closely the actual costs involved. The new scheme is confined to the same area - road traffic accidents - as the previous legislation. The Law Commission has yet to report upon the wider principle, upon which it sought consultation, of allowing recovery for all forms of tortiously caused personal injury. However, we now have a scheme in force which can easily be expanded to cover other accidents. 2. JUSTIFYING THE RECOVERY OF COSTS IN PRINCIPLE In its Consultation Paper the Law Commission argued that there was a principled case for recovering NHS costs. The restitutionary principle of unjust enrichment was thought to support such recovery. In addition, there were analogous situations where benefit was already being recovered: ρ As discussed above, insurers were already obliged to pay hospital expenses in any case where they made a compensation payment in respect of death or personal injury arising out of a road accident. ρ Private medical insurers are entitled to rely upon their right of subrogation to reclaim from tortfeasors the costs of care they provide. It was argued that the NHS should not be treated differently. However, there is some doubt about whether private insurers in practice make extensive investigation into whether their patients have been tortiously injured in order to rely upon their right to reclaim the treatment costs. 18 18 But see Andrew Dismore noting that as a claimants solicitor he had been required to recover thousands of pounds on behalf of insurers. Hansard HC Deb vol 322 col 198 (8 December 1998). 6

ρ Finally, as already noted, since 1990 the state has been able to recover social security benefits from compensators. Arguments against extending recovery to NHS costs emphasised that the principle involved was capable of a much wider application. There seems every reason for extending it to apply not only to accidents at work but to all tortiously caused injuries. According to insurers the argument could then be taken further: why not collect the costs of self-inflicted injuries to oneself such as those resulting from abuse of tobacco, alcohol or drugs? Again, if the NHS is to be able to recover costs why not the police force, the fire brigade or other public emergency services? 19 In particular, local authorities may be keen to recover on a statutory basis the cost of the long-term care they provide for accident victims. 20 The Law Commission, in only a Consultation Paper, 21 had little to say about such extensions of the recovery principle. Another objection only briefly considered by the Commission was that the recovery of such costs would be pointless if what was taken with one hand was merely given back with the other. This might happen where money is recovered from those who pay for liability insurance only for it to be used for the general benefit of taxpayers. These two groups substantially overlap for, in one way and another, it has been argued that we all pay for the costs of the tort system. Rather than embarking upon the individual assessment of costs it could be more efficient, for example, simply to raise the tax which is already collected upon the 19 Association of British Insurers, Response to Law Commission Consultation Paper No 144, September 1996. 20 Cf Avon County Council v Hooper [1997] 1 All ER 532, affirming the first instance decision (1995) 25 BMLR 26. See Stewart, Recovery Of Cost Of Local Authority Services [1999] J Personal Injury Litigation 27. Claimants lawyers have been advised to seek an indemnity from defendants against the possibility of such repayments being required. See (1997) 7 Association Of Personal Injury Lawyers Newsletter 9. 21 Op cit n 16. 7

premiums paid for liability insurance. 22 However, the Commission rejected this view, arguing that the two groups - taxpayers and premium payers - are not identical. Instead it opted for recovery of costs for a reason which others have seen as based on dubious economics: because recovery confines the cost of tort compensation to those who benefit from activities leading to tort liability. 23 Whether the costs created by motoring accidents are confined to motorists alone and not distributed to the community at large is very much open to doubt. 24 Practical Problems In addition to the problems of principle, the Law Commission recognised that there were a series of practical hurdles to be overcome in order to put in place procedures to recover NHS costs. In particular, any new system had to be costeffective. This would be easier to achieve, firstly, if there were no ceilings imposed on recovery for then the Commission estimated that as much as 120 million could be reclaimed. Secondly, to reduce the administrative burden of assessing the cost of NHS treatment a standard tariff per patient could be adopted instead of an individualised assessment in each and every case. Another possible objection to the scheme was that it might hinder the litigation process by delaying the settlement of claims. However, the Association of Personal Injury Lawyers was not concerned about this and instead was hopeful 22 The Regulatory Appraisal of the Road Traffic (NHS Charges) Bill 1998 failed to consider whether increasing the insurance premiums tax would have been a fair and efficient method of increasing the revenue. It simply dismissed a central levy upon the insurance industry as impractical as each company would have to agree a share of the total and apportionment between them would be contentious if not impossible. 23 Consultation Paper No 144 (1996) para 3.25. 24 P. Cane, Atiyah s Accidents, Compensation And The Law (6th ed 1999) pp 339-342. P. S. Atiyah, The Damages Lottery (1996). See also J. G. Fleming s views discussed in the conclusion to this article. 8

that recovery would encourage insurers to organise private care regimes at an earlier stage in the proceedings, and persuade them to adopt an approach to the injured person s condition which extended beyond consideration of damages alone. 25 This rather optimistic expectation is not shared by many claimant lawyers. A final concern of the Commission was the difficulty in practice of establishing a recovery scheme based upon that then operating for social security recoupment. At that time insurers were able to deduct all the recouped benefit from the damages they paid to the injured person. It would not be right to allow them to deduct NHS costs as well. A completely separate collection system was therefore envisaged with the creation of another CRU. However, the social security recovery scheme was revised in 1997 with the result that insurers became liable to repay benefit even if they could not set it off against damages. This, and other changes, enabled NHS recovery to be incorporated relatively easily into the revised procedures now used by CRU to recover welfare benefits. 3. THE NEW SCHEME OF RECOVERY The liability to pay the appropriate charge to cover the relevant NHS treatment now arises where a compensator makes a payment in respect of injury or death resulting from the use of a motor vehicle on a road. The use of the vehicle must be such as to attract the compulsory insurance provisions of the Road Traffic Act 1988. Among other things this means that the recovery scheme does not affect the one million vehicles operated by the Crown. 26 A charge is made for the cost of any treatment or examination given in an NHS hospital except where it is provided on a private basis. 27 Unlike the benefit 25 APIL, Response To Law Commission Consultation Paper No 144, March 1997, para 4.3.2. 26 Hansard, HL Deb 2 March 1999 col 1559. 27 1999 Act s. 1 (6). 9

recovery scheme, a charge can be made for NHS costs even in the case of death. The definition of a compensation payment which triggers the charge is essentially the same as that under the social security scheme. 28 It is broadly defined to include almost all aspects of the payment of damages in tort for personal injury. For example, it does not matter whether the payment is the result of an ex gratia settlement as opposed to a court order. Nor does it make any difference if the damages are reduced for contributory negligence; there is no pro rata reduction in the charge made. A compensation payment includes one made by the Motor Insurers Bureau, even though this organisation did not have to pay under the old NHS charges scheme when it awarded compensation to the victims of uninsured and hit-and-run drivers. 29 The legislation is retrospective in that it affects all payments made from 5 April 1999, even though the date of accident may have been much earlier than this. 30 The Certificate The mechanism for collecting payment involves CRU issuing a Certificate of NHS charges in much the same way as it issues a Certificate of Recoverable Benefit for social security purposes. Compensators already have a duty to inform CRU of all claims of compensation made against them. Further information gathering powers are in the new legislation. 31 The compensator must now supply details of whether, where and when hospital treatment was given as a result of 28 For a detailed anaysis see R. Lewis, Deducting Benefits From Damages For Personal Injury (1999) chap 13. 29 Because the MIB was not liable to pay for the cost of treatment under the old scheme it has been protected against the retrospective effect of the 1999 Act. SI No 785 reg 17 provides that it is not to be liable for NHS charges in relation to accidents which occurred before the legislation came into force on 5 April 1999. 30 Except in the case of MIB cases as noted above. 31 1999 Act s. 11 and SI 1999 No 785 regs 2 and 7. 10

the accident, and this information should therefore be forwarded by claimants representatives when first making contact with the compensator. In the normal course of events the only information needed is whether treatment as an outpatient or in-patient was received and, if the latter, the number of days of admission. However, in every case the NHS hospital itself will be contacted by CRU to verify the details supplied by the compensator. 32 The result of this information gathering is that the CRU has become a key statistical source in relation to certain aspects of the personal injury system. In the case of social security benefit the compensator must apply for a certificate of benefit before making a compensation payment. However, in the case of NHS costs, although the compensator may apply beforehand, he can defer application until after making the compensation payment. 33 For administrative convenience compensators may wish to apply before making a compensation payment because they will then be able to combine the repayment of benefits with the NHS costs due. Both transactions can be conducted at the same time and one cheque sent to CRU. The DSS has only to issue a certificate as soon as is reasonably practicable, 34 and is not constrained by the 28 day limit which applies in the case of benefits. This is partly because CRU is dependent upon the NHS trusts to supply the information necessary to issue a certificate. However, delay in issuing a certificate ought not to delay settlement of a case because, if necessary, the insurer can pay the charges for treatment after settlement. It is important to remember that, unlike social security recovery, repayment of NHS costs cannot affect the damages the injured person himself receives. The NHS certificate may be valid indefinitely, or it may expire on a specified date or after a 32 Information supplied by the NHS Executive, Finance and Performance Directorate. 33 1999 Act s. 2 (8) and SI 1999 No 785 reg 2. 34 1999 Act s. 2 (2). 11

specified event. It will specify the amount of payment due, if any. Although it notes the number of relevant days of treatment, it does not contain details of exactly how the charges have been computed. However, these further particulars can be obtained by the compensator if a separate application is made for them. 35 The Charges The regulations set charges at a level which it is intended should result in the recovery of the full cost of the relevant NHS treatment when the overall accident picture is considered. 36 The charges are simple to calculate and consist of two elements: 37 ρ A set fee for patients treated or examined in accident and emergency departments or out-patient clinics, regardless of the number of times the patient has to attend hospital. Initially this fee is set as 354. ρ A daily rate for patients admitted to hospital for treatment. Initially this fee is set as 435 a day, beginning on the day of admission and rising with every midnight stay, with the day of discharge from hospital being disregarded. 35 1999 Act s. 3 (6) and SI 1999 no 785 reg 6. 36 The charges were set following the compilation of statistics by Department of Health economists. They examined information from the NHS on numbers of patients and their treatment; Department of Transport data, including numbers of accidents and their severity; and detailed work carried out by the Transport Research Laboratory on the type and costs of treatment given to road traffic accident victims. Also used was data from CRU on the numbers of claims for compensation made each year following motor vehicle accidents and the rate of success of those claims. From that pool the economists produced an average cost to the NHS of both severely and slightly injured people. Multiplied by the total numbers of those people who can be expected to make a successful claim for personal injury they arrived at the total amount which the NHS can expect to receive through charges. 37 SI 1999 No 785 reg 4. 12

In addition there is a ceiling for costs for treating any one patient. This is 10,000, more than three times the limit that applied under the old scheme. There are also further limits to the amount to be paid if the injury occurred before 2 July 1997, the date of the Chancellor s budget speech which announced the intention to recover more closely the actual cost of NHS treatment. 38 The charges are based on a detailed study of costs in which it was found, for example, that a person admitted to hospital as a result of a road accident spends on average 8.1 days as an in-patient. 39 This produces an average charge per traffic victim of about 3,500. As with social security recovery, the charges must be paid within 14 days of settlement, the liability being upon the person making the compensation payment. However, it is extraordinary that there are no special provisions for failing to comply with these deadlines. The official reason for this is because of the faith government has in insurers. 40 Whereas the social security benefit recovered ultimately goes into the coffers of the Treasury, the 1999 Act provides for the NHS money recovered to be returned within 40 days to the relevant trust or body responsible for managing the hospital providing the treatment. 41 Regulations deal with the more complicated cases where treatment was received at more than one hospital, or where more than one compensator is involved. 42 38 For these old cases the charges are not to exceed the maxima which applied under the former system, these being for out-patient treatment 295, and for the in-patient treatment a daily rate of 435 up to a maximum of 3,000. SI 1999 No 785 reg 3. 39 The Regulatory Appraisal Of The Road Traffic (NHS Charges) Bill (1998) annex 2. 40 Hansard, HL Deb vol 596 col 1448 (2 February 1999). 41 1999 Act s. 13, and SI 1999 No 785 reg 8. 42 1999 Act s. 14 (1) and SI 1999 No 785 reg 13. 13

A certificate can be challenged either by asking CRU to review what they have done or by making an appeal. The basis for an appeal is modelled on that for social security so that, for example, it cannot be made until the claim has been disposed of and payment made for the NHS charges. 43 The most likely ground for an appeal is that based on causation and arguing that the certificate takes into account treatment which is not in respect of the relevant road accident. 44 Appeals lie to new Unified Appeal Tribunals set up under the Social Security Act 1998, but thereafter, unlike in benefit recovery cases, there is no appeal on a point of law to the Social Security Commissioners. Instead resort must be had directly to the High Court. 45 4. CONCLUSION: TRENDS IN COLLATERAL BENEFITS AND COMMUNITY RESPONSIBILITY FOR ACCIDENTS Elsewhere I have identified the different solutions to the problems posed by collateral benefits, and set them in their historical context. 46 In the nineteenth century damages generally took no account of other sources of compensation and plaintiffs were able to cumulate benefits. 47 In the twentieth century judges became increasingly uncertain as to whether cumulation should be replaced by a policy of reducing damages to prevent what was perceived as overcompensation of plaintiffs. By the 1980 s there had been a clear shift of 43 1999 Act s. 7 (2). 44 1999 Act s. 7 (b). See, for example, the concerns about hospital caused infections and preexisting injuries raised in HC Deb Standing Committee B (15 December 1998) col 9. 45 1999 Act s. 9 and SI 1999 No 786 reg 12. 46 Lewis, Deducting Collateral Benefits From Damages: Principle And Policy (1998) 18 J Legal Studies 15. 47 The seminal case which deals with insurance policy monies is Bradburn v Great Western Railway Co (1874) LR 10 Exch 1. 14

approach against double recovery 48 with the result that large deductions were possible to take account of certain social security benefits. 49 Except where statute declared otherwise, 50 reduction had replaced cumulation as the orthodox rule. However, there was then still little scope for a third solution, recoupment, which allowed the compensating source to recover from the tortfeasor the cost of the support it had given to the injured person. This inability of the state to recover the cost of welfare provision for those tortiously injured could not withstand the pressures of Thatcherite economic theory. The subsidy given to insurers as a result of the policy of reduction was as anathema to free market idealists as the wasteful overcompensation resulting from cumulation. As a result, after some delay, the comprehensive statutory scheme for recovering social security benefit was set up and came into operation in 1990. It was then judicially extended to the recovery of local authority care costs, and now, by another statute, it has been introduced to enable a drip feed of money to be set up for the hard pressed NHS. Recoupment has thus become the favoured solution. All this seems a world away from the trend in favour of community responsibility and community payment for injury identified in a famous article by John Fleming in 1966, and recently highlighted by Harold Luntz. 51 Fleming noted that Britain was in the vanguard in rejecting the economic calculus requiring 48 Law Commission, Collateral Benefits Consultation Paper No 147 (1997) para 2.103. 49 Most notably in Hodgson v Trapp [1989] AC 807. 50 Law Reform (Personal Injuries) Act 1948. 51 The Collateral Source Rule And Loss Allocation In Tort (1966) 54 Cal L Rev 1478. See Luntz, The Collateral Source Rule Thirty Years On in P. Cane and J. Stapleton, Essays In Celebration Of John Fleming (1998) at p 406. Of course, community responsibility was one of the five guiding principles of the Woodhouse Report which heralded the far reaching changes set in place in New Zealand. Royal Commission Of Inquiry, Report On Compensation For Personal Injury In New Zealand (1967). 15

particular activities to bear their full costs. He thought this insensitivity for finer discriminations between different risk communities was least objectionable in the case of road accidents because transport is an activity from which we all benefit. In his view it made little difference whether the bill was paid by general taxation or by the insurance premium paying community. The contrast with the Law Commission views examined earlier could not be greater. Fleming thought that community responsibility would eventually lead to a review of the future of tort liability. 52 In fact, in later years the tort system, far from being abolished or falling into decline, has been made even more important in this country. The number and type of claims and the level of damages now available far exceed what might have been projected by even the most ardent tort supporter who opposed Fleming s views over thirty years ago. The recent work of the Law Commission in reviewing the law of damages generally adds to the importance of tort law. It is somewhat ironic that it is in other parts of the common law world, and not in Britain, that restrictions have been placed on its use. Tort flourishes here, and Britain is no longer in Fleming s vanguard. As part of this continued expansion of tort the Road Traffic (NHS Charges) Act 1999 Act further extends the recoupment principle. In doing so it reasserts the primacy of the tort obligation with its attendant support for individualism and its rhetoric of punishing wrongdoers - no matter how difficult it may be to identify them or make them pay in practice. Irrespective of how expensive, irrational, or even grossly unfair the fault principle appears in practice each pound of cost is to be counted and allocated its proper place. It is insurers - or rather their policyholders and indirectly all of us - who must pay. The resulting stealth tax 53 is a convenient political method of raising revenue, and the hypothecation which allocates that money to particular hospitals is superficially attractive. But the recoupment principle applied to benefits and health costs entrenches the tort 52 Luntz, op cit. 53 Ann Widdecombe called it a tax on accidents HC Debs vol 322 col 166 (8 December 1998). 16

system as a part of the means for raising public revenue. The wastefulness and inequities of the basic principle upon which that system is founded - the fault principle - are lost in the narrower focus and in the political expediencies of the moment. The recovery of NHS costs is but a symptom of a New Labour desire to make the public services more efficient in terms which a Thatcherite would approve, but which would dishearten many welfarists. The problem of collateral benefits concerns the interrelationship of compensation systems and welfare states, and like other aspects of the tort system, it has a political dimension which merits closer examination. 54 54 Cf the political and social context examined in my previous note of another recent statutory development in damages law Whispering In Appropriate Ears: Lobbying And The Damages Act 1996 (1996) 60 MLR 230. 17