Vicki Swanton’s recent blog towards the end of January took a broad look at a range of factors at work in influencing the increasing cost of clinical negligence claims and outlined some of the initiatives underway to address this. Further data on the rising burden of clinical negligence in England emerged earlier this week in the written Parliamentary answer set out below.
The orthodox answer to this question is no, on the basis that it is the peculiarities of the facts which give rise to the outcome, rather than any new legal approach. In two decisions this week in the tort of negligence, the clinical claim Darnley in the Supreme Court and the vicarious liability claim Bellman in the Court of Appeal, the higher Courts worked from the initial findings of fact and applied the existing law to them to drive different outcomes from those reached in the courts below.
On Monday 30 January the Department of Health published its long-awaited consultation paper on introducing fixed recoverable costs for clinical negligence claims. These would be mandatory for all clinical negligence claims (i.e. applying to claims arising in the health service as well as in other/private treatment settings) valued between £1,000 and £25,000 and the consultation includes detailed costs figures.
Approximately 80% of all claims settled for damages against the NHS in England in 2015/16 fall within this range. It is also at these relatively lower levels of damages that the disproportionality of claimant legal costs appears at its greatest – the consultation reports that in these cases total claimant costs are more than double, 220%, the damages awarded. The consultation will close on 1 May 2017.