Where a claimant suffers personal injury, a consequence of that injury may be the breakdown of his or her personal relationships, and in some cases divorce. Particularly where the injuries suffered are serious and a change in personality has resulted, divorce may be a likely consequence. As a result of such divorce, the claimant may be seen to suffer ‘losses’, such as the adjustment of shares in the matrimonial home or an order to make periodic payments to a spouse. In addition to these pecuniary losses, the claimant may have suffered non-pecuniary loss in the distress caused by the dissolution of his or her marriage.
Losses are not recoverable from the defendant in the personal injury action, regardless of how foreseeable the divorce and the consequent loss may have been. There has been considerable criticism of this decision where offered solutions to overcome the arguments relied on by the Court of Appeal.2. A majority of consulters were opposed to reform and having further considered what has proved a most difficult issue. These were derived particular assistance from the views given to us by Hale J, for which the most grateful.
A number of consul tees saw this as one aspect of a wider issue, namely the question whether personal injury damages should be excluded completely from consideration in the divorce hearing. At present there is no ‘ring-fencing’ of damages which would achieve such exclusion and they may be taken into account as appropriate. It was evident that many among consulters felt that personal injury damages, with the possible exception of those for lost earnings, should be excluded in this way. For instance, the Council of Circuit Judges stated that “the proper course is to give the Judge dealing with the financial consequences of the divorce a wider discretion to exclude some or all of the damages. Although we can see the force of this argument in principle, we consider this to be essentially a matter of family law, and as such outside our remit. It seems from the responses we received that most family lawyers would regard such exclusion as unacceptable.
Losses are not recoverable from the defendant in the personal injury action, regardless of how foreseeable the divorce and the consequent loss may have been. There has been considerable criticism of this decision where offered solutions to overcome the arguments relied on by the Court of Appeal.2. A majority of consulters were opposed to reform and having further considered what has proved a most difficult issue. These were derived particular assistance from the views given to us by Hale J, for which the most grateful.
A number of consul tees saw this as one aspect of a wider issue, namely the question whether personal injury damages should be excluded completely from consideration in the divorce hearing. At present there is no ‘ring-fencing’ of damages which would achieve such exclusion and they may be taken into account as appropriate. It was evident that many among consulters felt that personal injury damages, with the possible exception of those for lost earnings, should be excluded in this way. For instance, the Council of Circuit Judges stated that “the proper course is to give the Judge dealing with the financial consequences of the divorce a wider discretion to exclude some or all of the damages. Although we can see the force of this argument in principle, we consider this to be essentially a matter of family law, and as such outside our remit. It seems from the responses we received that most family lawyers would regard such exclusion as unacceptable.
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