Thanks to Charles for bringing our attention to this.

It is interesting for the blatant appeal - in a law reform proposal! - to a principle of "avoiding unjust enrichment" as justifying the extended liability (para 4.6). It is nice to see the admission that the "principle" is one for re-shaping the law, rather than merely for re-stating it. (Though we could have wished that the admission had come a little earlier.) It is no longer obvious today, as it was to one writer last century, that " 'unjust' can never be made to draw on an unknowable justice in the sky". However, as Buxton LJ has already pointed out, this is a position of some logical difficulty - for if the supposed principle really extends this far, why is it necessary to REFORM the law to recognise it? (See Law Com 262 para 3.22 note 27.)

As to the merits of the proposal, I suppose it is really a question of whether the end (to get more money for the NHS) justify the means (making the customers of dangerous employers pay more). Stated in practical terms, the proposal is to charge the insurers of tortfeasors for NHS costs occasioned by the tort. The insurers will, of course, pass this on to their clients (overwhelmingly private employers). The private employers will, of course, pass it on to their customers. But will the customers notice? Para 4.16 notes that while the proposal means an increase of about 7% in insurance premiums, in fact those same premiums are about to go through the roof for quite different reasons. So, nudge nudge wink wink, if the government enacts this proposal very quickly, they will be able to extract the contemplated £120m from the public without anyone noticing. If anyone questions why premiums have gone up, it is calculated that this contribution will seem too small to mention.

Whether this is regarded as astute financial planning, or as a cynical way of raising the public burden on the taxpayer without having to admit what they are up to, may simply be a matter of taste.

Steve Hedley

=============================================
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

ansaphone : +44 1223 334931
www.stevehedley.com
fax : +44 1223 334967

Christ's College Cambridge CB2 3BU
=============================================