As the Law Commission's Consultation Paper on Collateral Benefits discusses in considerable detail, fairy godmothers come in different shapes and sizes. When some of them pay eg the victim of a tort in respect of his loss, the effect of their payments is to leave him with a live right of action against the tortfeasor which he may then pursue for himself, and the interesting question then arises whether he should be allowed to keep both the fairy godmother's payment and the proceeds of his action against the tortfeasor. When other types of fairy godmother pay the victim in respect of his loss, however, the cases say that the effect of their payment is to extinguish his right of action against the tortfeasor - and in this situation we cannot say that the fact that the tortfeasor wasn't the person who paid the victim is 'irrelevant', if what we want to know is whether the victim can then go ahead and sue the tortfeasor. On the contrary, it is highly 'relevant', because the cases tell us very precisely that the answer is 'no' - though the interesting question still remains to be answered whether the provider of the collateral benefit should be allowed to recover from the tortfeasor via an action for money paid.

Charles

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Dr Charles Mitchell
Lecturer in Law
School of Law
King's College London
Strand
LONDON WC2R 2LS

tel: 0171 873 2290
fax: 0171 873 2465