It could be argued that Britain is increasingly becoming litigious and a compensation culture may be developing. This argument is not new and it is heralded from all quarters, the newspapers, political discourse and judicial decisions. According to Stephen Byers [1] "excessive litigiousness affects both the economy and the national psyche [2] ." In this essay it would be determined whether there is a growing compensation culture in the United Kingdom (UK), or an urban myth fuelled by the excessive reporting of sensational high profile cases. A conclusion would be reached, by analyzing the tort of negligence and a definition of a 'compensation culture'. In order for this to be achieved there would be a review of cases, journal and newspaper articles.
Establishing Blame: The tort of negligence
In order to establish blame on the part of a tortfeasor an analysis of the tort of negligence, specifically the duty of care and the breach of that duty is necessary. Firstly, a definition of negligence, according to Lord Wright "in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing." [3] Therefore, negligence claims is dependent on a number of common law principles; namely that the duty of care is owed to a claimant, and once that duty of care is breached by the defendant that the breach resulted in loss or injury to the claimant.
An understanding of the duty of care and the relationship that give rise to that duty is necessary, this understanding can be achieved by an analysis of the landmark case of Donoghue v Stevenson, [4] in this case the Courts recognised a new principle, referred to at the neighbor principle. This principle encapsulates the duty of care which Lord Atkin states that "a duty was owed to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected". . This principle was further reviewed and refined by Lord Wilberforce in Anns v Merton London Borough Council. [5]
After establishing whether there is a duty of care the next question to be answered is whether that duty to care has been breached: has there really been negligence. The basic rule expounded in Blythe v Birmingham [6] which states that negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do. This reasonable man principle even encompass the learner driver, this driver owes a duty of care to road users; he is expected to drive with the care of an experience driver despite his relative inexperience. [7]
There is also the thin skull rule which states that a defendant may be found liable for negligent damage whether the claimant has a particular pre-disposition which makes them more susceptible to damage. In Smith v Leech Brain & Co [8] this thin skull principle was evident. In this case a burn occurred in the course of Smith's work, this burn was to his lips. His job entailed lifting articles with a crane into a tank which contained molten metal. It was argued that because he had gotten burn on his lip it caused him to develop cancer three (3) years later, which led to his death. In the Wagon Mound case [9] "the defendant takes his victim as he finds him". In Wagon Mound the issue of remoteness was addressed. In this case the defendant was not found liable because it was stated that the test was that of a reasonable man, therefore if the reasonable man was not able to foresee the damage, then the damage was too remote. This case involved oil spillage in the harbor. The oil was set alight by a spark from welders, which lit a piece of cotton which lit the oil that was floating on top of the water from the spill. The fire which resulted caused a considerable amount of damage. To the habour and the boat moored. The courts decided that the damage caused was unforeseeable and therefore too remote. The reasonable man could not foresee those chains of events and therefore compensation is limited to foreseeable damage.
Compensation culture is defined by the willingness of the society to use litigation as a way to resolve incidents, however minor, with the hope that they would be compensation for their injuries. Even if a clear link between the cause of the injuries and the defendant is tenuous at best. Besides being frivolous and unfounded, they have a small chance of success, and are regarded as being opportunistic. The Better Regulation Task Force argued that the term compensation culture rather than being used to describe when a society is willing and are able to seek compensation. It better describes a society who seeks frivolous claims for compensation. [10]
This type of society is damaging because it increase the cost of insurance and the companies or business which require insurance. [11] It is argued by some that it prevents some potentially dangerous activities and certain types of school trips, on the other hand, this prevents worthwhile trips by schools and other organizations because of the fear of being sued. This also brood a somewhat undesired economy based on greed. David Fisher argues there is not a compensation culture but a vulture culture. He argues that since out of every £1 spent 43p is spent in legal costs that the legal profession profits from the so-called compensation culture. [12] Fisher claims that this greed is extended to insurers and the public at-large. He believes that they think of compensation as an easy way to make money. A compensation culture has also been equated with a "blame culture" which raises concerns over decreasing personal responsibility. [13]
It is established that the tort of negligence is necessary for a compensation culture to exist, because this is the main avenue for compensatory litigation. Prospective claimant finds negligent act as a cause for their misfortune because of the possibility of large damages. Nonetheless, there are substantial legitimate and deserving cases on the tort of negligence, especially as it pertains to medical negligence. In recent times, examples of medical negligence would include Fallon v Wilson [14] where the doctor overlooked the symptoms of what eventually resulted in the brain damage of the premature baby. Comparatively, in Kirby v Ashford and St Peter's Hospital [15] the defendant had cerebral palsy which resulted from negligence which occurred at his birth. Additionally, the tort of negligence continues to serve a legitimate purpose evinced by claims from victims' families who died as a result of the Iraqi and Afghanistan wars. For instance Regina (Smith) v Oxfordshire Assistant Deputy Coroner, [16] the case concerned death from hyperthermia sustained whilst he carried out his duties in Iraq. Negligently Smith was not equipped to the conditions that he had to endure.
Although the previous cases were legitimate and the tort of negligence is there to protect individuals as mentioned above. There are attempts at frivolous unfounded and opportunistic litigation, one such attempt which fuels the notion of the concept of a compensation culture, and one which gathered numerous headlines was that of Michael Sams; he attempted litigation three times while incarcerated and succeeded in gaining compensation because the authorities lost his prosthetic leg while he was in prison. Fortunately, he lost another of his frivolous claims when he attempted to get compensation for getting a bed which was "too hard" in prison. [17] Another case of frivolous litigation is Tomlinson v Congleton Borough Council this is significant because the judges may have closed the proverbial floodgates and stop the growing culture of laying blame on the party with the perceive deeper pockets. [18] Tomlinson dived into the lake and his head stuck the shallow sandy bottom breaking his neck, notwithstanding, that the Congleton Borough Council had placed signs at the lake prohibiting swimming. His argument however, was that the council steps to prevent his injury was not sufficient , even though there were numerous signs informing the public that it was unsafe to swim in the lake. He argued that since those signs which prohibit swimming were systematically ignored, and the council was aware that members of the public continued to swim there. Nevertheless, Tomlinson admitted that the decision to dive into the lake was a conscious one, although he was aware of what the danger entailed and that by so doing so he could not cast all the blame on the council. The case was described by the Telegraph as a ruling with landmark status and it decrees that individuals are responsible for their own actions. [19]
As a whole, the judiciary is cognizant of the notion of the compensation culture and is eager to avoid this, therefore when considering cases of negligence the judiciary tend to err on the side of caution to prevent the opening of the so-called floodgates. This was evident in the case of Gorringe v Calderdale MBC, [20] where Gorringe was injured after he crashed into a bus which was on a sharp crest in the road. He argued that it is the responsibility of the highway authority to warn motorists of the potential dangers on that particular section of the road and their failure (or omission) resulted in his injuries. However, the courts ruled that the responsibility to take due care and attention is dependent on the motorists and not the authority. Therefore the authority is not to blame for his injuries.
Before the Gorringe case, there were other cases that established the possible concerns of a compensation culture namely, Miller v Jackson [21] in this case Miller attempted to stop cricket which was played on the village grounds, cricket balls had entered Miller garden and he also complained of the noise level. At first, Miller was successful, however, the injunction was overturned on appeal, and he was offered £400 compensation, this compensation was for any previous or future damage that may occur because of the cricket balls entering Miller's garden. Cases such as Tomlinson and Gorringe encouraged legislative action, and as a result the Compensation Act 2006 was enacted. At the introduction of this Act, Catherine Fairbairn, stated that in order to prevent the compensation culture from developing, it was important to attempt to change the perceptions that leads to a fear of litigation. She argued that it was important to improve the system so that when there is a valid claim for compensation it could be addressed. [22] Notwithstanding, in many quarters the Compensation Act has been criticized, it is argued that there is no compensation culture and that the bill is endeavoring to deal with an urban myth, this myth has been perpetrated by articles, media reports and claims management company. This argument leads me to an analysis of articles which argue the contrary.
Attempts are made to try to quantify whether the UK is in the throes of a compensation culture. Lewis et al [23] analyses the number of claims and try to determine whether there are trends that could be established for injuries caused by negligence. However, in his article he claims that for the years of 1997-2006 there has been no significant increase. Conversely, Williams argues in his article that the UK may have what he termed is the opposite of a compensation culture. He argued that the UK is experiencing too many what he calls wrongful harms which are going uncompensated or what he states that in comparison with the US is low level of compensation. [24] This posits in conjunction with the arguments of the Better Regulation Task Force, this task force states that relative to its GDP the United Kingdom has the second lowest compensation figures. Williams also states that claims which are legitimate and well-founded should not be calculated or considered as part of the growing compensation problem. He further states that these claims are examples of an effective justice system.
Another theory of the perpetration of the urban myth could be founded in the extensive advertising in all forms of the media those claims management companies. There are arguments from many quarters which propose that those companies have restrictions on their advertising and this could quell the fear of litigation. Although there is conflicting evidence of the compensation culture in academic and judicial quarters, it is obvious that the general perception which the public holds is that there is a tendency to try and cast blame on the authorities or persons who has deeper pockets. [25] This perception means that insurers charge higher premiums which are passed on to the public, and therefore everyone pays, this further contributes and perpetuate the myth. [26]
Conclusion
By some media accounts there is a proliferation of frivolous compensation claims, however there has been little to substantiate this. Arguably, there has been an increase, has this increase constituted a grave or increasing problem with the result that there is a rush for compensation this is indeterminate from the facts analyzed. Therefore the real issue is whether the UK is just becoming more aware of their rights and as a consequence more willing to litigate. By examining the cases there is good evidence that there has been an increase in claims of which some have been frivolous. Although Williams have suggested that there is no reliable evidence that there has been an increase in frivolous claims. It has been proposed that the insurance industry rely on subjective evidence, of a changing environment so that they could justify increase prices. This price increase is based on suspicious or speculative claims, which is not really representative of compensation claims in general. It was posit by the Chairman of Lloyd's of London that there is a plundering of the economy by a deluge of claims; however, it seems that this statement was not necessary by a disinterested member of the public. In conclusion, it is evident that there are many views on the compensation culture in the UK. It is obvious that the tort of negligence is the vehicle in which this dreaded disease is carried. However, because awareness of this disease is at the forefront of the minds of the members of the judiciary, it would not be left to become a pandemic. It is evident that the judiciary will prevent this from happening, and they have been successful in their attempts
