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 claims in negligence rely on the following common law principles; that the defendant owes a duty of care to the claimant, that this duty of care has been breached by the defendant and that the breach has resulted in a loss or injury to the claimant.
To understand the duty of care and the relationship that give rise to that duty an analysis of the landmark case of Donoghue v Stevenson is necessary, [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 principle even extends to learner driver who was expected to drive with a standard of care of a reasonable person despite their relative inexperience. [7]
A defendant may still be found liable for negligent damage even if the claimant has a pre-disposition that made the damage worse than otherwise would have been expected (the thin skull rule). In Smith v Leech Brain & Co [8] it was found that a burn to Smith's lip occurred in the course of his work; where he is required to lift articles in to a tank of molten metal with the aid of a crane. The burn was a catalyst to a pre-existing cancer that, three (3) years later, led to Smith's death. In the Wagon Mound case [9] "the defendant takes his victim as he finds him". This case also brought about the principle of 'remoteness'; where the defendant cannot be found liable if a reasonable man could not foresee the damage. In this case, oil had spilled in the harbour and was set alight by a spark from welders. The resulting fire caused a considerable amount of damage. It was decided that this damage was unforeseeable to the reasonable man and therefore compensation could be limited to the damage that was foreseeable.
A 'compensation culture' can be defined as a culture where people are quick to use litigation to resolve minor incidents with the hope of gaining compensation. This is often extended to include incidents that have tenuous links between the claimant and defendant. These cases can be described as frivolous or unfounded, where they have little chance of succeeding, and are therefore 'opportunistic'. As the Better Regulation Task Force [10] said:
"The term compensation culture is not used to describe a society where people are able to seek compensation. Rather a compensation culture implies that a decision to seek compensation is wrong."
It is argued that a litigious society is damaging as it increases the requirement for insurance, and the cost of insurance. [11] Although it prevents some potentially hazardous activities from taking place, such certain types of school trips; as these would require large insurance costs that are unaffordable. It also brood a rather undesired greed economy. According to David Fisher [12]
"While there may not be a compensation culture, there is a "vulture culture" in respect of legal fees. Figures from the Association of British Insurers (ABI) show that across motoring and liability, for every £1 spent on injury claims, 43p is spent in legal costs."
This greed can be extended to insurers and the general public who think of compensatory claims as a way to make easy money. A compensation culture has also been equated with a 'blame culture' and raised concerns over decreasing personal responsibility. [13]
Without the tort of negligence a compensation culture could not exist, as this is the route for compensatory litigation for negligent acts. Prospective claimant finds negligent act as a cause for their misfortune because of the possibility of large damages. However, there are many legitimate and deserving cases for negligence, especially in the realms of clinical negligence. Recent examples include Fallon v Wilson [14] where the defendant doctor neglected to notice the symptoms that should have resulted in a referral to hospital and led to the premature baby's brain damage. Similarly, in Kirby v Ashford and St Peter's Hospital [15] the defendant had spastic quadriplegia as a result of negligence at the time of his birth. Further cases demonstrating the value of tort of negligence have been seen in the claims of those suffering after the deaths of loved ones at war in Iraq and Afghanistan, for example Regina (Smith) v Oxfordshire Assistant Deputy Coroner. [16] In this case Smith died from hyperthermia sustained whilst carrying out his duties in Iraq, when he should have been equipped to the conditions that he would have to endure.
Even though there are deserving cases for negligence, there are those that encourage the concept of a 'compensation culture', these cases meet my earlier definition as frivolous, unfounded and opportunistic. One plaintiff, that was a popular subject for the media, was Michael Sams; who three times attempted litigation whilst he was held in jail, succeeding once in gaining compensation after the prison authorities lost his artificial limb. However, he failed in his attempt to sue for his prison bed being 'too hard'. [17] The case of Tomlinson v Congleton Borough Council was considered a key case in determining the boundary of frivolous litigation. [18] Tomlinson had dived in to a lake that was on Congleton Borough Council property, where swimming was prohibited. Tomlinson argued that the council had not taken enough steps to prevent his injury, and that the notices prohibiting swimming were ineffectual as they had been ignored by others in the past. However it was shown that he had made the decision to dive whilst fully aware of the dangers of doing so, and therefore could not attribute the blame to the council. The Telegraph described the case as "a landmark ruling which decrees that individuals must take responsibility for their own actions." [19]
The judiciary is very aware of the reputation of a 'compensation culture' and is keen to avoid this situation, so when considering cases of negligence they act to limit the scope of floodgates liability. One such case where this would have been considered was Gorringe v Calderdale MBC, [20] where Gorringe was injured after crashing in to a bus on a sharp crest in the road. Gorringe argued that the highway authority should warn drivers of the potential dangers on this section of road, and were negligent in not doing so. However, the court decided that Gorringe should have been driving with proper care, and could not blame the council's lack of warning notices.
An earlier case that demonstrated the potential concerns of a 'compensation culture' was that of Miller v Jackson [21] where Miller attempted to prevent cricket from being played at the village cricket club, as occasionally cricket balls had entered Miller's garden. Initially Miller was successful, but the injunction was overturned on appeal, and instead Miller was offered £400 compensation for any previous or future damage that might occur due to cricket balls entering Miller's garden. Cases such as Tomlinson and Gorringe encouraged legislative action, and resulted with legislation such as the Compensation Act 2006. When this bill was introduced Catherine Fairbairn described its desired actions as follows:
"to prevent a compensation culture from developing, to tackle perceptions that could lead to a disproportionate fear of litigation and to risk-averse behaviour, to discourage and resist bad claims and to improve the system for those with a valid claim for compensation."
However, the Compensation Act has been criticized for attempting to tackle an urban myth, which has been perpetuated by media reports. This leads me to discuss whether the UK has a compensation culture. [22]
Some attempts have been made to quantify whether the UK suffers from a compensation culture. Lewis et al [23] looked to trends in numbers of claims being made for personal injuries and saw no significant change between 1997 and 2006. However, Williams states that we may have the opposite of a compensation culture:"It may be that too many wrongful harms in some areas go uncompensated or that compensation levels are low, comparatively speaking." [24] This agrees with the Better Regulation Task Force where the United Kingdom has the second lowest figures for compensation when compared relative to GDP. Williams also argues that "legitimate, well-founded claims" should not be considered as part of the problem; as these are examples of justice being served. There is some agreement that the perception of a 'compensation culture' is founded in media reporting and television advertising for claims management companies. Lord Young suggests that restrictions should be placed on how claims management companies can advertise their services, as this drives a fear of litigation.
Despite this evidence that a 'compensation culture' does not seem to affect the UK, it is clear that public perception thinks otherwise; [25] and this means that insurers and the public have to deal with some of the outcomes of this. This will lead to scare stories and further perpetuate the myth of the compensation culture. [26]
Conclusion
In conclusion, it is clear that the principles of tort of negligence could encourage a compensation culture if they were kept unchecked. However the actions of the judiciary will look to prevent this from occurring, and have so far been successful in their attempts. By the proliferation of material that argues that the number and extent of injury claims has risen it seems that this is the determinate factor which dictates the moral and economic condition of the UK. The question then, is the UK fast becoming less tolerant and more litigious? Unfortunately, there is little evidence to suggest or provide a decisively consistent answer. It seems that by examining the case law that there is good evidence that some sorts of accident claims have risen and that there seems to be a certain amount of frivolous claims. However, whether this increase constitutes a grave or rather increasing problem is indeterminate. According to K. William [27] who suggests that there is virtually no reliable evidence about the number of bogus or exaggerated claims or whether they constitute a grave (or increasing) problem. What has been plausibly suggested is that 'some insurance industry commentators rely heavily on anecdotal evidence of a worsening environment in order to justify price increases, quoting individual cases of highly doubtful or speculative claims that cannot be truly representative of claims in general'. When Lord Levene, the Chairman of Lloyd's of London, complains that a 'deluge' of claims is 'plundering the economy', we sense that this may not be a totally disinterested assessment.
