The Compensation Act 2006 was enacted at the end of July 2006 and intended to address increasing concerns of a 'compensation culture' in the United Kingdom. However, in the government's introduction to the Compensation Bill there is no clear definition of what constitutes a 'compensation culture' leaving room for academic criticism. Academics and legal practitioners have addressed this issue as a myth fuelled by lurid headlines in the press and since Parliament rushed to legislate on the matter has led to large controversy. [1] The main reason for this debate is that section 1. of the Compensation Act 2006 does not introduce something new to the existing law, but simply codifies the existing common law found in the judgement of Tomlinson v. Congleton BC [2] . For the purpose of this essay, I will focus on section 1 of the Compensation Act which deals with the 'deterrent effect on potential liability' [3] and analyse the extent to which this section has been applied.
Firstly I will analyse how the common law addressed the deterrent effect of potential liability on desirable activities. The leading case in this field is the case of Tomlinson v Congleton BC [4] which outlined that the courts are prepared to rule in favour of the defendant in order to prevent litigation which will interfere with the enjoyment of social activities by the remainder of the public. As Lord Hoffmann indicated in his judgement that there are important questions of freedom at stake and it would be unreasonable for the courts to impose a duty to protect irresponsible visitors against obvious dangers which would result in deterring reasonable individuals from enjoying everyday activities. [5] Moreover, Lord Hobhouse outlined in his judgement that: "it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment by the remainder of society of the liberties and amenities to which they are rightly entitled. This judgement is what later became s.1 of the Compensation Act 2006.
The Compensation Act 2006 did not however define what constitutes a 'desirable activity' and has been the subject of criticism since this will lead to an increase in costly satellite litigation to define what constitutes a 'desirable activity.' [6] On the other hand, a suggestion was made by Lord Hoffmann in Tomlinson v Congleton BC as to what constitutes a desirable activity, and he indicated that a balance must be drawn between the likelihood that someone may be injured, the seriousness of the injury, but also the social value of the activity which gives rise to the risk and the cost of preventive measures. He illustrated his argument with examples from Bolton v. Stone [7] and Jolley v Sutton London Borough Council. [8]
Another case which includes the issue of 'desirable activities' is the case of Cole v. Davis Gilbert [9] however no reference was made to the Compensation Act 2006 even though the judgement was given in 2007 one year after the Act was enacted. In the principal judgement of this case Baker LJ highlighted that pure accidents do happen and it is not for the law to impose a higher standard of care since this will deter people from organising events of social value. [10] Additionally the case of Trustees of the Portsmouth Youth Activities Committee v. Poppleton [11] also makes no reference to the Compensation Act 2006, which adds to the argument that s.1 of the Compensation Act 2006 merely amounts to a restatement of existing common law which judges are reluctant to refer to. This statement was also emphasized in the judgement of Justice Field in Uren v. Corporate Leisure (UK) Limited [12] that the Act adds nothing to the existing law. [13]
Additionally a case which made reference to the Compensation Act 2006 was the case of Scout Association v. Barnes [14] were Jackson LJ stated that it is not the function of the law of tort of negligence to eliminate every particle of risk or to stamp out socially desirable activities. Declaring that this principle is now protected by s.1 of the Compensation Act 2006 however, the provision was not in force at the time of the claimant's accident but has been in the common law through the dicta of Tomlinson v Congleton. An alternative case which made reference to the Compensation Act 2006 is Hopps v Mott MacDonald Ltd [15] were Justice Christopher Clarke did not accept that s.1 should only be applicable to activities such as the provision of public amenities or the playing of sports and not to a claim for personal injuries suffered in theatre. He believed that the reconstruction of a shattered infrastructure after a war should also be considered a desirable activity, thus giving the term 'desirable activity' a much broader definition. As a result desirable activities could include medical treatment and education as in the case of Phelps v. London Borough of Hillingdon [16] , which would lead to a flood of claims and actually aggravate the 'compensation culture' which the Act sought to eliminate. We must wait to see what effect this section will have on the provision of medical treatment since it could also be included in the wide meaning of desirable activities.
Most academics and legal practitioners do not believe that section 1 of the Compensation Act 2006 will have any beneficial effect. Since the courts already take into account the potential deterrent effect on social activities through the common law. However, it should be emphasized that section 1 is only concerned with the "approach of the court to assessing that question of fact and not with what the standard of care should be, nor whether the defendant owed a duty of care to the claimant." [17] Moreover the test in section 1 of the Act is to be applied at the discretion of the court, in other words the judge can apply it if he believes it is applicable which in my opinion does not safeguard the defendants since this provision is not mandatory.
In conclusion a main question comes to mind. If the statute does not change the law, why have it at all? [18] This provision will only cause confusion to the claimants since the legal practitioners are aware of this provision through the Tomlinson case. Moreover this provision could have adverse effects on the government's aim to tackle the 'compensation culture' since it could encourage the defendants to seek judicial interpretation of what constitutes a socially desirable activity. Furthermore since section 1 does not alter the existing common law it can be argued that it does not protect desirable activities to any further extent than what the common law did. However, one can argue that from the judgment of the Hopps case the scope of what constitutes a desirable activity has increased leaving room for judicial creativity to include activities such as education and medical treatment in this definition. In my opinion we have not yet seen the effects of section 1 of the Compensation Act 2006 and we shall observe them in the near future.
Annotated Bibliography:
Books:
A Dugdale and M Jones (eds), 'Clerk & Lindsell on Torts' (20th ed Sweet & Maxwell London 2010)
Professor Anthony Dugdale and Professor Michael Jones explore a range of issues concerning the deterrent effect of potential liability. He examines the rightfulness of protecting desirable activities together with an illustration of the development of common law after the judgment of Tomlinson such as the case of Hopps v. Mott MacDonald. Moreover, he evaluates to a large extent section 1 of the Compensation Act using helpful references to legal academics journals. These aided me in a much broader understanding of the issue.
Christopher Walton (ed), 'Charlesworth & Percy on Negligence' (12th ed Sweet & Maxwell London 2010)
Christopher Walton explores the scope of section 1 of the Compensation Act 2006 through relevant case law. One of the cases which he refers to is Phelps v. London Borough of Hillingdon were he examines the judgments to see whether the provision of education is considered to be an activity of social value and thus be protected under section 1. Moreover, the editor offers a useful discussion of the common law duty to safeguard desirable activities.
John Cooke, 'Law of Tort' (8th ed Pearson Longman, Essex 2007)
John Murphy, 'Street on Torts' (12th ed Oxford University Press, Oxford 2007)
V Bermingham and C Brennan, 'Tort Law Directions' (2nd ed Oxford University Press, Oxford 2010)
Journal Articles:
Alec Samuels, 'The Compensation Act 2006: Helpful or Unhelpful for Doctors?' (2006) MLJ 74 (171)
This journal article looks at the scope of section 1 of the Compensation Act 2006 with regards to medical treatment. The author looks at the judgments in Tomlinson to see if medical treatment is implied to be a socially desirable activity. Moreover he also criticizes the Act stating that it should not have been enacted since it adds nothing to existing law and could lead to more litigation to clarify the meaning of desirable activities.
Andrew Parker, 'Changing the Claims Culture' (2006) 156 NL.J 702
Kris Lines, Jon Heshka, 'Falling in Line with the Law' (2008) 158 NLJ 1026
Ravi Nayer, 'Personal Injury: Being Responsible' (2009) 159 NLJ 1420
Rebecca Herbert, 'The Compensation Act 2006' (2006) J.P.I. Law 337
Rebecca Herbert is a barrister in the fields relating to personal injuries and also the editor of Personal Injury Quantum Reports (P.I.Q.R.) In this journal article Rebecca Herbert examines the aims of the Compensation Act 2006 which introduced into statute the judgment of Tomlinson, the apportionment of liability in mesothelioma cases, and the regulation of the claims management industry. In this journal she explores the scope of section 1 of the Compensation Act 2006 by considering the debates which took place in Parliament during the passing of the Bill. She also addresses the compensation culture and characterizes it as a myth created by the irresponsible media. Finally she analyses the judgments in Tomlinson to establish what constitutes a desirable activity.
Richard Woodward, 'Personal Injury Law in Parliament - a Busy Couple of Years' (2007) J.P.I. Law 309
Richard Woodward is the Parliamentary Officer for the Association of Personal Injury Lawyers (APIL). In this article he firstly looks at the events which occurred before the passing of the Compensation Act 2006 such as Tony Blair's speech to the Institute of Public Policy Research were he introduced the concept of a compensation culture. Furthermore he also outlines the adverse effects that could arise from the Compensation Act such as confusion and further litigation. Finally the author also looks at the other aims of the Compensation Act 2006 such as mesothelioma and the claims regulatory system.
Roddy Macleod, 'Personla Injury / Occupiers Liability: What do you mean it's my Fault?' (2010) 160 NLJ 567
Case List:
Cole v. Davies Gilbert [2007] EWCA Civ 396, 2007 WL 919550
Hopps v Mott MacDonald Ltd [2009] EWHC 1881 (QB), 2009 WL 2207440
Phelps v. London Borough of Hillingdon [2001] 2 A.C. 619
Scout Association v. Barnes [2010] EWCA Civ 1476, 2010 WL 5139385
Tomlinson v Congleton BC [2003] UKHL 47, [2004] 1 A.C. 46
Trustees of the Portsmouth Youth Activities Committee v. Poppleton [2008] EWCA Civ 646, [2009] P.I.Q.R. P1
Uren v. Corporate Leisure (UK) Limited [2010] EWHC 46, [2010] N.P.C. 7
