Talk of Blame Culture in Negligence Law - Assignment Example

Today, talk of blame culture or compensation culture features prominently in discussions concerning negligence law. In Atiyah’s “The Damages Lottery”1, he expresses dissatisfaction with the present system of awarding damages for personal injury claims and puts forward the argument for replacement of the damages lottery, with a no fault based compensation scheme and increased role of insurance. Atiyah’s arguments are further rooted in a growing academic perception of blame culture and compensation culture permeating negligence claims.2 In this paper I shall undertake a critical review of this topic by considering the concept of the blame and compensation culture and evaluating Atiyah’s proposals regarding the implementation of a no-fault scheme to circumvent the “damages lottery”. In reviewing the tort of negligence and the alleged prevalence of the “blame culture”, it is important at the outset to consider the theoretical justification for fault based liability in tort, which has arguably extended the concepts of duty of care, which in turn has fuelled a blame culture. To this end Hassan El Menyawi propounds that such an evaluation is essential to a meaningful comparison of the arguments for and against a no fault scheme in the tort of negligence: “On a formalist account, a theory of justification stands for the idea that law is not merely a huge collection of separate and disparate norms, but a cohesive social arrangement, which is describable in the form of one or more several moral values……. We adopt this methodology and account for tort law by exploring a variety of distinct justifications3”. This concept of “moral values” underpins the current fault based liability for negligence in the framework of a system of “corrective justice”. The fundamental difference between the corrective system and the no fault system of distributive justice relates to the legal approach to the structure of interactions. For example, corrective justice centres on the “transaction4” between two parties, whereas distributive justice is rooted in a distribution whereby compensation is awarded to members of a group. As such, Weinreb5 comments that: “To take a modern example, the legal regime of personal injuries can be organised either correctively or distributively. Correctively, my striking you is a tort committed by me against you, and my payment to you of damages will restore the equality disturbed by my wrong. Distributively, the same incident activates a compensation scheme that shifts resources among members of a pool of contributors and recipients in accordance with the distributive criterion6”. Theoretically the corrective justice system centres on “correcting the wrongdoers wrongful act7” and to this end, the tort of negligence has developed a legal notion of fault for the purpose of establishing liability. This in turn has led some commentators to argue that the underlying fault based liability has fuelled a “blame culture” in the UK system, which is converging towards a US style compensation hungry paradigm8. Alternatively, some argue that the current scheme contradicts the theoretical purpose of corrective justice due to fault based liability being limited to the confines of a rigid test of duty of care, proximity and foreseeability9. Despite moral concepts of fault and “wrong”, the inherent difficulty of policing morality through a legal framework is highlighted through the inconsistent judicial approach to fault in the tort of negligence. Perhaps part of the problem is that the tort of negligence is currently implemented by judicial opinion and as such, suffers from the same criticisms that the “whole of the common law is a product of judicial creativity”10, which creates uncertainty. The starting point for approaching the concept of fault in negligence is the landmark case of Donoghue v Stevenson11, which asserted the general principle that a defendant must be in breach of a duty of care in order for liability to be established. The breach of this “duty of care” was defined as conduct that “a reasonable person would not do12”. Accordingly, the negligence concept of fault is attributed to failure to reasonable precautions to avoid causing harm that is reasonably foreseeable. However, whether this approach can be equated with blameworthiness in the corrective sense is questionable13. For example, in the case of Nettleship v Weston14, a learner driver was held liable in negligence for injuries she caused to her instructor by incompetent driving. During the case, it was agreed that there was no doubt that the defendant was driving to the best of her limited abilities, however liability was still established due to satisfying the legal concepts of fault. Whilst justifications for a corrective justice system are sound in principle, the problem is that the practical approach of the legal concept of fault is far removed from the actual definition of fault and blameworthiness15, which begs the question as to whether the current justifications for fault based liability in tort are valid. Indeed Feldthusen asserts that “the symmetry between loss and gain disappears when, as perhaps in a motoring accident, an instant’s inattention makes a person liable for millions of dollars16”, which in his view contradicts “the dictates of our moral intuitions17”. If we apply this view by analogy to the Nettleship v Weston18 case, it clearly highlights the limitations of fault based liability, which ignores these distinctions. This creates the undesirable position in law where an individual can face liability for a momentary loss of attention yet the negligence concept of fault fails to address wider concepts of wrongdoing and blameworthiness. This is further evidenced by the widening concepts of duty of care in tort law. A prime example is the case of CBS Songs Limited and Others v Amstrad Consumer Electronics plc and another19 where Lord Templeman held the director personally jointly liable with the company and asserted that liability in tort arose where “the individual intends and procures and shares a common design that the infringement takes place20”. Lord Templeman further asserted that for imposition of liability person must have intended the infringing acts and that “a person who only facilitates a tort is not liable as a joint tortfeasor whereas a person who procures a tort is liable21”. However, such a point clearly focuses on fault and policy motivated decisions and arguable ignores the objective reasonableness test in negligence law, thereby lending itself open to a blame culture. Moreover, if we consider the judicial approach to negligence in outdoor activities, Fulbrook highlights how “the last decade since Lyme Bay has seen a small number of high profile investigations and civil claims, leading to significant alarm in schools, clubs and organisations about their legal liability22. Indeed, Fullbrook directly attributes the widening concepts of duty of care in negligence to the growing compensation culture.23 Fulbrook further posits that there “also seems to have developed in some quarters a repeated mantra about a blame culture, which has allegedly been sapping the very fabric of society”24. This is further highlighted by Atiyah’s argument that the policy motivated judicial decisions in negligence cases and widening concepts of duty of care have fuelled a generous compensation system where “many members of the public feel uneasy about the increasing spate of claims for damages”. 25 This unease and potential danger of a blame culture negligence claims model is further highlighted by the sentiments of High Court judge Rougier J in John Munroe (Acrylics) v London Fire and Civil Defence Authorities26 where he stated that “it is a truism to say that we live in the age of compensation”27 and that “there seems to be a growing belief that every misfortune must, in pecuniary terms at any rate, be laid at someone else’s door, and after every mishap, every tragedy, the cupped palms are outstretched for the solace of monetary compensation. Claims which would have been unheard of 30 years ago are now seriously being entertained, and public money provided for pursuing them28”. The problem of floodgate claims is further perpetuated by the inherently complex and inconsistent approach to damages claims for psychiatric injury unrelated to direct personal injury. Indeed, Steele comments that “there is indeed a wide range of cases in which there is recognises to be a duty not to cause psychiatric damage to the claimant, contradicting any general perception that such damage by its very nature constitutes a problem”29. For example, Judge LJ in Bradford-Smart v West Sussex County Council30, acknowledged a duty of a school to protect pupils against bullying. Nevertheless the duty of foreseeability yardstick was held to be high. Indeed, in this case, it was held that whilst the school had a duty to protect pupils from bullying, this stopped at the school gate and even though the school might know of the bullying, it would not be practical, just, fair or reasonable to extend its duty in beyond the proximity of the school environment31. As regards to what happened within the school premises, a school could choose to take pro-active measures however was not obliged to do so. On this basis, the decision in the Bradford case demonstrates a sensible approach to avoiding blame culture motivated claims. Indeed, the Bradford case highlighted that whilst the school owed a duty of care to its pupils, the threshold had to be high on grounds that the educational breach of duty claim would clearly lead to pure economic loss32. Additionally, Lord Slynn in the case of Phelps v London Borough of Hillingdon33 gave a warning against the prevalence of blame in approaching damages claims “the difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But those claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded”34. Moreover, according to Schiemann LJ in Vellino v Chief Constable of Greater Manchester Police35 the plaintiff’s injury caused by his own attempts to evade police custody was very different to issue of the duty of care owed during detention itself and as such, the claim failed on ground that no duty of care was owed to save someone in respect of their own carelessness. This is clearly a welcome approach in placing limits on any notion of a prevalent “blame culture” system in negligence claims. Indeed in the Vellino case, Schiemann LJ asserted that “there is no difference between a person who comes upon land without person and one who having come with permission dos something which he has not been given permission to do”36. Nevertheless, the cases highlighted above clearly demonstrate a varying approach to duty of care, which appears to be shaped by policy motivated considerations. As such, it would appear that the danger of the blame culture is clearly cogent and further supports the concept of a “damages lottery37”, which begs the question as to whether the current system should be replaced with a no-fault compensation scheme for certain accidents and the increased role of insurance. For example, it is submitted that the growth of insurance as customary practice has introduced the notion of loss distribution, where the question is not who is to blame, but who can most easily bear the loss caused by a particular accident38. For example, in the case of Smith v Eric S Bush39, Lord Griffith asserted that: “There was once a time when it was considered imprudent to even mention the possible existence of insurance cover in a lawsuit. But those days are long past….. the availability and cost of insurance must be a relevant factor when considering which of the two parties should be required to bear the risk of loss40”. Whilst Lord Griffith’s comments are justifiable as a practical approach to the reality of accident compensation claims and as a justification for the introduction of a no-fault scheme; introducing elements of no fault liability through the back door compounds uncertainty in the current application of fault based liability in tort. Hassan El Menyawi further comments that “corrective justice is no longer about correcting the wrongdoer’s wrongful act since many defendants have private insurance41”. Again this contradicts the “linchpin of…… corrective justice42”. This is further compounded by the current inconsistency in enforcement of accident compensation claims. For example, in certain cases insurance against a risk may become compulsory for example sections 143-145 of the Road Traffic Act 1988 and the Employer’s Liability (Compulsory Insurance) Act 1969), which deals with accidents at work. Furthermore, the Motor Insurer’s Bureau (MIB) has an agreement in place with the Department of Transport that they will provide additional cover funded by a pool derived from insurance premiums in cases in which an accident is caused by an uninsured or untraced driver43. In the case of Gardner v Moore44 it was held that the MIB would even be responsible in cases in which a driver intended to cause injury but not, conversely where the accident took place on private property as in such cases the compulsory insurance scheme under the Road Traffic Act 1988 was inapplicable45. This anomaly further highlights how enforcement of “fault” in tortious liability for accident claims are selective and limited in considerations of where the loss lies. In turn, this approach arguably demonstrates the inherent limitations of a no fault scheme justified on grounds of insured risks and loss allocation. This is further evidenced by the strange position that although employers are also subject to a compulsory insurance scheme, there is no such equivalent to the MIB agreement, which as the case of Dunbar v A & B Painters Limited46 demonstrates, is a relevant consideration by courts when considering compensation claims. Again, the current approach therefore limits the application of fault within judicial interpretation specific to the nature of the claim, which is clearly unacceptable in perpetuating a lack of legal clarity as to the boundaries of its ambit. Where an accident victim can satisfy the complex legal requirements necessary to make a claim in tort, they can recover much more than someone excluded on the English law’s system of “full compensation”47. With regard to personal injury claims, this includes actual earnings and damages in respect of pecuniary and non-pecuniary loss48. However, the corrective concept of “full compensation” is again questionable in light of the selective application of the principles, coupled with the fact that the number of successful tort claimants is relatively small49. For example, the first hurdle is to establish that the claimant is a victim of an “accident”, which may be the result of the fault of the defendant50. It has been argued that a wider concept of the term “accident” may also include congenital disability and disease, where they are man-made51, but there are a number of conditions which may occur by accident, but due to the inherent problems of the applicability of “fault” in the legal sense, they may not be attributable to the fault of the defendant52. In such cases, “the tort system is likely to fail as a means of accident compensation by allowing a number of claimants to fall through the compensation net53”. The Pearson Report54 highlighted the other problems of fault based liability as costs, unpredictability of outcome, the unbalanced way in which payments were made and the problem of the use of compensation by the claimant. The Pearson Report further highlighted that the administrative cost of tort compensation was 85 per cent of the total amount paid out in 1977. In contrast, the equivalent cost of compensation under the social security system came to only 11 per cent55. Furthermore, as the outcome of a tort action is dependant on claimant instigated proceedings, the litigant must be in a position financially to bring a claim due to the limited availability of legal aid56. Hassan El Menyawi develops this argument further in highlighting the tort of negligence’s inherent inequality between rich and the poor and comments that: “tort liability is patently unfair because rich defendants pay while poor defendants do not, but also because a plaintiff who is injured by a rich defendant has the opportunity to get compensated while a plaintiff who is injured by a poor defendant does not have the same opportunity57”. In light of this inequality Hassan El Menyawi argues that “no fault compensation, no the other hand, has the potential of providing a consistent amount of damages for similarly situated cases. This is achievable because the state attempts to compensate any victim so long as they fulfil eligibility criteria.58” Furthermore, the rising costs of the tort system are intrinsically associated with the requirement of fault, with significant expense incurred in identifying who is at fault and therefore potentially responsible for the harm suffered by the claimant59. Costs are incurred in assessing how much compensation will be paid, with investigations and the preparation of expert reports. This is further exacerbated by the nature of the adversarial system, often resulting in cost duplication of each party calling their own experts60. The current system has also been criticised for being slow in the delivery of compensation and the Civil Justice Review61 highlighted that the more complicated the case, the greater the delay with the average time from accident to trial in a High Court case being five years. This delay exposes claimants to defendants and their insurers who have “every incentive to throw obstacles in the path of a claimant in the hope that litigation will be suspended62”. The Woolf Reforms and the Civil Procedure rules63 go some length to alleviate this problem however dependant on a pressurised understaffed court system. Lord Scarman in the case of Lim Poh Choo v Camden & Islington64 highlighted that “there is really one certainty: the future will prove the award to be either too high or too low”, thereby confirming the unpredictability of the current fault based system. This is perpetuated by the fact that even when the claimant can establish a duty of care, they have the burden of establishing breach, factual causation and that the loss suffered is not too remote. Even if a claimant can prove this, there is a significant risk that the final compensation awarded will significantly be less, which must be offset against the cost of litigation65. As a result, claimants are often pressured to settle out of court, having incurred significant cost in instituting proceedings in the first instance. Conversely, it has been reported that administrative costs incurred by insurance companies in processing smaller claims has sometimes led to an over generous settlement66, which highlights the unbalanced way in which compensation is awarded far removed from any notion of corrective justice attributable to the fault of the defendant. The means of paying damages in the form of a lump sum has also been criticised as requiring the courts to guess what the future might bring at the time of trial, again leading to an inconsistent approach to the notion of compensation for fault based liability67. As a result and particularly in relation to traumatic, long term injuries, “the accountancy-driven system of structured settlements has begun to prove popular68” as provided for under the Damages Act 1996, which enables periodic payments. The Courts Act 2003 has amended section 2 of the Damages Act 1996, which effectively compels a claimant to accept a structured settlement imposed by a court provided that the continuity of payment under the order is reasonable secure. Allowing courts to order a means of compensation other than that asked for by the claimant is undoubtedly controversial69 and highlights the inherent problem of compensating adequately for blameworthy acts. However, it is arguable that such an approach is necessary to circumvent the arbitrary nature of fault based liability and Lewis argues that the advantage of the periodic payment system is that the focus is on the annual financial needs of the claimant, which has often resulted in higher compensation funded by the defendant’s insurers70. Conversely, in the case of Hodgson v Trapp71 Lord Bridge72 criticised the system of structured payments in benefiting a very small percentage of accident victims at the cost of the ordinary taxpayer. Lord Bridge highlighted the unsatisfactory contrast where ordinary taxpayers who themselves may be injured will have subsidised such awards to such a victim, but would be unable to maintain an action for damages themselves due to suffering a non-tortious injury73. In any event, whilst the merits of a no-fault scheme are undeniable, the inherent deficiencies highlight that introduction of such schemes will not act as a panacea to the current inconsistencies in fault based liability per se. Perhaps (as suggested above) a less radical approach to a public liability tort would be to undertake a detailed review of the current legal test for negligence liability. The inconsistent application of “fault” clearly creates uncertainty compounded by its inability to cover the wide range of circumstances that fall within the tort. Furthermore, as some element of culpability will inherently be linked to the effective running of a no-fault compensation scheme, this in itself highlights the fundamental need to reassess the law’s approach to the concept of fault. The fundamental problem is the arbitrary nature of the current application of fault. Accordingly any review of this area must consider change specific to certain claims and it is submitted that any proposed legislative reform should consider implementing separate guidelines in relation to concepts of fault in specific cases, particularly medical negligence. If this approach is to be adopted, an initial recommendation would be a detailed official review of the current legal framework for negligence with effective communication and consultation with relevant bodies such as the medical profession in addressing the realities of malpractice cases for example. Only when a detailed and effective review of the current tort of negligence is undertaken at an official level can deficiencies in the current system as well as a considered approach to implementing a workable no fault scheme be addressed in any meaningful way to reconcile the balance between corrective and distributive justice going forward. BIBLIOGRAPHY Atiyah’s Accidents, Compensation and the Law. 7th Edition, Cambridge University Press (2006). PS Atiyah (1997). The Damages Lottery. Hart Publishing Allan, Beever., (2007). Rediscovering the Law of Negligence. Hart Publishing. Peter Barrie., (2005). Personal Injury Law. 2nd Edition, Oxford University Press. Blackstones Statutes on Tort 2007/2008 Department of Transport “Compensation of Victims of Untraced Drivers” 7th February 2003 between the Secretary of State for Transport and Motor Insurers’ Bureau and Uninsured Drivers Agreement February 2006. Jos, Dute., No fault compensation in the Healthcare Sector (Tort and Insurance Law). Fleming., (1985). “Tort or Compensation”, The Law of Torts”. 2nd Edition Oxford Clarendon Press. Feldthusen., “If this is Tort, Negligence must be Dead”, quoted in Ken Cooper-Stephenson, ed., Tort Theory., (1993). Fullbrook (2005). Outdoor Activities, Negligence and the Law. Ashgate Publishing John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press Judicial Studies Board., (2006). Guidelines for the Assessment of General Damages in Personal Injury Cases. 8th Revised Edition Oxford University Press. Kemp and Kemp (Yearly) Quantum of Damages. Sweet & Maxwell Lewis, “The Politics and Economics of Tort Law” (2006) 69 MLR 418. Lunney, M., & Oliphant, K. (2008), Tort Law: Text and Materials. 3rd Edition Oxford University Press. Report of the Royal Commission on Compensation for Personal Injuries, CMND 7054, 1978 Hassan El Menyawi., (2002) Public Tort Liability: An Alternative to Tort Liability and No fault Compensation. Murdoch University Journal of Law Volume 9, Number 4. Jenny Steele., (2007) Tort Law: Text, Cases and Materials. Oxford University Press. Weinreb., “Formalism, Morality and Corrective Justice”. Quoted in Ken Cooper-Stevenson, ed., Tort Theory, (North York, Ontario: Captus University Publications,1993), at p.10. P. Widmer., & W.H. Van Boom., (2005). Unification of Tort Law: Fault (Principles of European Tort Law). Kluwer Law International. W. Boom., H. Koziol. & C. Witting., (2004). Economic Loss (Tort and Insurance Law). First Edition, Springer. Kerry Underwood., (1998). No Win No Fee (Civil Litigation in Practice). XPL Publishing. Read More