On The Profit And Loss Balance Of Personal Injury Compensation

According to the principle of deduction of collateral benefits, benefits to the plaintiff that would not have accrued but for the injury and are directly consequent on it shall be deducted in assessing damages. Such principle, deriving from the compensatory function of damages in Tort, however, has been faced with puzzles in actions involving personal injury. Owing to the development of insurance and social security, the injured, besides claiming damages against the tortfeasor, also has other means to recover, eg: insurance, social benefit, etc. Can the plaintiff be permitted to recover compensatory damages including amounts already received from collateral sources from the defendant? The question has long perplexed judges and professors. However, in China, the principle of deduction of collateral benefits has long been ignored, resulting in confusing results in practice. This paper intends to discuss the question systemically.In the first part, the dilemma it meets while applied to damages for personal injury is brought forward after a brief introduction of the principle of deduction of collateral benefits and its legal rationale.The next part present a comparative analysis of theories and judicial practices determining deductibility of collateral benefits in both civil law countries and common law countries.In the last part, the author presents her own opinion on the question, and puts forward specific suggestions towards China's situation.The most remarkable features of this paper consist of:Firstly, this topic is new, lacking research in China.Secondly, several typical types of collateral benefits summed up in the first part are focused on all through discussion, which are insurance, employment benefits, charitable payments, social security benefits, heritage and rights of maintenance towards the third party.Thirdly, comparative research is used in order to reach a scientific conclusion.Last but not the least, the author presents her own opinion on the question: first, it should be assured that the premise of application of the principle of deduction of collateral benefits is that the plaintiff is entitled to total compensation under the tort law; second, while determining deductibility of collateral benefits, factors including the source and the causation of the benefits, the purpose of the law and public policy should be taken into consideration; third, subrogation of the third party has nothing to do with the deduction of collateral benefits.