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 is expected to drive with a standard of care of a reasonable driver despite their inability to drive. [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 him to lift articles in to a tank of molten metal with the aid of a crane. It was argued that because he had gotten burn on his lip it 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". In Wagon Mound the issue of remoteness was addressed. In this case the defendant was not found liable because it was stated that if a reasonable man could not 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 would 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]
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 from being played at the village cricket grounds, because occasionally cricket balls had entered Miller's garden. Initially successful, however, the injunction was overturned on appeal, and Miller 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 bill 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." . [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.
