(P.225) 5.2.2. Comparing the Treatment of Collateral Benefits348

A vexed question is the extent to which an injured person may recover compensation from both the tort-delict system and another source, such as an insurer or a social welfare body. In French law, the basic premise is that the victim should receive full and complete reparation, but not over-compensation.³⁴⁹ Thus, it is contrary to principle that a victim should gain a windfall by cumulating collateral benefits with damages. In practice, this is achieved in administrative law by a system of either deductible collateral benefits or extensive subrogation rights accruing to the collateral benefits provider.³⁵⁰ This contrasts with the English system, in which the deductibility of collateral benefits is by no means uniform, and repayment rights of the collateral benefit provider are not always enforced.³⁵¹ It is very difficult to give an exact expression of this difference, but by juxtaposing the attitudes to certain types of collateral benefit the comparison is clear.

There are differences in terms of the direct deductibility of certain collateral benefits from the damages received by the claimant.³⁵² Pensions and charitable payments are generally non-deductible in the English system,³⁵³ whereas any such benefits will be deducted from damages in French administrative law.³⁵⁴

There are also apparent disparities in the existence and effectiveness of recovery devices in favour of collateral benefit providers. In the case of social security payments, there are now provisions in both English and French law which allow recoupment of the cost of the welfare benefits from the wrongdoer.³⁵⁵ Both systems have however ring-fenced damages awarded for certain types of non-pecuniary loss. In both countries, (p.226) damages for pain and suffering may not be used in order to offset social security benefits that have accrued to the injured party.³⁵⁶ On the other hand, elements of the English system do seem to favour the claimant.³⁵⁷ Whereas under the English rules all non-pecuniary loss is protected, in French administrative law only so-called personal types of non-pecuniary loss are protected.³⁵⁸ The portion of troubles dans les conditions d'existence which are attributable to psychological harm are ring-fenced, but the remainder may be used to offset social security benefits.³⁵⁹ In both jurisdictions, the statutory recoupment right also now extends to cover the costs of state health care,³⁶⁰ although the English system gives the NHS a right to recover its costs only in road accident cases.³⁶¹

In relation to insurance payments, both the French administrative courts³⁶² and the English courts³⁶³ ignore sums obtained by virtue of non-indemnity personal accident insurance in the assessment of damages for personal injury. On the other hand, subrogation is stipulated for indemnity insurance payments such as health insurance, which grants the insurer in both England and France a direct right of recovery of its expenses.³⁶⁴ But English private health insurers with a contractual right of repayment have been reluctant to exercise their right when a victim has received damages for medical expenses. Cane records that a claimant insured under BUPA will often gain double payment of his or her medical expenses, under parallel payments from BUPA and the tortfeasor.³⁶⁵

(p.227) The Law Commission has concluded that ‘only patchy use is made of the means for repayment of collateral benefits at present in English law’.³⁶⁶ Injured victims in England are thus able to gain a windfall by means of double recovery. In France, on the other hand, the systematic recoupment of any significant medical and welfare costs, coupled with the frequent finding of contributory fault,³⁶⁷ has had a severe effect on claimants.³⁶⁸ For instance, in a recent case concerning a young man who was completely paralyzed after an accident caused by a defective building, a damages award of over four million Francs was made, but over 75 per cent was recouped by the Caisse Primaire d'Assurance Maladie de l'Aube for medical and welfare payments.³⁶⁹