Blame or Compensation Culture Explained - Assignment Example

Blame or Compensation Culture Explained Blame Culture or Compensation Culture, which are often discussed in cases involving negligence issues, refersto the ‘vast increase in litigation’ or a ‘culture of litigation’ (Mullender, 2006). It may also be known as a ‘spectre of a flood of claims’ or a ‘proliferation of claims’ (2006). Hence, there were fears expressed relating to the possibility of ‘increased resort to litigation’ (2006) citing for instance in the field of medical negligence where there is an apprehension that there might be a crisis of US style malpractice cases (Mason & McCall 1987). The possibility of having a flood of claims and a malpractice crisis which may be a pretentious claim, is perceived as a threat (Mullender, 2006). Judges however give the impression that they are tackling a real problem that besets the society and not merely a potential problem (2006). Immunity from negligence liability, which benefited barristers, has now been disregarded by the House of Lords (Arthur Hall & Co v Simons, 2002). Hence in cases where there is a failure to warn patients of the possible risks in connection with an impending treatment, the medical practitioners may incur liability for such failure (Chester v Afshar, 2004). Not only those cases related to medical practice are involved, but this professional negligence extends to other areas of professional activity such as information technology (Powell & Stewart, 2002). The Compensation Act 2006 which received Royal Assent on 25 July 2006 explains the law of negligence and breach of statutory duty; damages for mesothelioma; and the regulation of claims management services in order to regulate such claims (DCA, 2006). Blame culture may be both positive and negative (Mullender, 2006). It is positive in such a way that it is ‘morally right’ to hold responsible those who carry out civil wrongs, commit crimes and those who infringe upon the human rights of others (Atiyah, 1997). Blame is valuable in the sense that it secures the individual and the society’s interest and at the same time encourages those wrongdoers to have a sense of responsibility for their actions (Mullender, 2006). There are also negative implications of blame culture. Judges Attitude Towards Blame Culture Lord Templeman, in the case CBS Songs Ltd v Amstrad Consumer Electronics Plc, described the blame culture in a negative sense. Citing the case of Anns v Merton LBC on the two-stage duty of care test which he describes as having ‘put floodgates on the jar’ (1988). He also stated that “foreseeability had become ‘a reflection of hindsight and that for every mischance in an accident prone world someone solvent must be liable in damages” (1988). Hence, relating the blame culture in a negative sense. He also explained that if it can be proven that respondents have infringed the rights on BPI by the Act of 1956 then the court would be willing to grant the proper and effective reliefs and remedies. However, the court “will not invent additional rights or impose fresh burdens” (1988). He further adds that no one is to blame as the court had no power to make orders forbidding the sale to the public of all or selected types of tape recorder or that it’s advertisements be censored by the court on behalf of copyright owners (1988). In the case of John Munroe (Acrylics) v London Fire and Civil Defence Authorities [1996] 4 All ER 318, blame culture is also described in a negative sense, in that he explains that there is an increasing belief “every misfortune must be laid at someone else’s door” (1996). In this case the defendant employed fire fighters who thought all the fires had been put out, which turned out that there was still fire in the plaintiff’s premises causing damage to his property (1996). Hence, the plaintiff sued the defendant along with the others for negligence (1996). The court in this case held that the defendant owed no duty of care to the plaintiff as imposing such duty would only lead to defensive fire fighting and would not improve the efficiency or the effectiveness of the service (1996). Rougier J explained that the imposition of such duty would lead to a flood of claims as these fires were said to be mostly acts of God or of criminals which leaves the fire service to be the only ones to be sued (1996). He further explains that “after every mishap, every tragedy, the cupped palms are outstretched for the solace of monetary compensation” (1996). This kind of culture according to Rougier J is being encouraged in the judiciary as having encouraged as these kinds of claims that were unheard of 30 years ago are now being accepted or entertained (1996). In Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7, the claimant sought compensation for bullying at school against the council which maintained and was accountable for the school (2002). The Court of Appeal dismissed such claims and explained that while it recognizes the schools’ duty to protect their pupils from bullying, “it would not be practical let alone fair, just and reasonable, to impose upon it a greater duty than to take reasonable steps to prevent that bullying spilling over into the school” (2002). The decision explained that a school does not have the “charge of its pupils all the time and so cannot directly protect them from harm all the time” (2002). The school’s accountability usually ends at the school gates, although they must also take reasonable steps “to ensure that young children who are not old enough to look after themselves do not leave the school premises unattended” (2002). Further, it stated that it is not enough that there be a finding that there has been bullying and then finding a breach of duty, but there must also be a causal connection between such breach of duty and the resulting injury as well (2002). Judge LJ explained further that it is possible that the claimant’s mother may have exaggerated her claims regarding her daughter’s treatment in school (2002). In conclusion, Judge LJ explained that a school cannot be reasonably “expected to do more than to take reasonable steps to prevent a child being bullied while it is actually at the school” (2002). Thus dismissing such claim and indicating ways of how to counter the so-called ‘blame culture’ (Mullender, 2006). It is different however in the case of Phelps v London Borough of Hillingdon [2000] 3 WLR 776, where questions regarding the liability of a local education authority or its employees for their failure in providing the appropriate educational services to children in school, were raised (2000). Phelps claimed that Hillingdon were “in breach of their duty to use reasonable professional skill and care, failed to appreciate or assess Pamela’s learning difficulties and her dyslexia and failed provide or arrange for the provision of reasonably appropriate tuition and treatment” (2000). Hence, plaintiff claimed damages based on past and future loss of earnings and cost of tuition (2000). The High Court ruled that the educational psychologist had a duty of care to Ms. Phelps and also held that Hillingdon which employed the said psychologist, was vicariously liable , thus ordering them to pay compensation claimed (2000). The Court of Appeal however reversed the said ruling stating that there was no direct duty to the claimant (2000). Ms Phelps then appealed to the House of Lords which reversed the decision of the Court of Appeal and allowed claims for compensation (2000). It held that the common law duty of care stresses that duties should be undertaken correctly, failure of which compensation may be claimed in case there is negligence that results to a loss (2000). Hence, “the local authorities and schools can be held vicariously liable” for such negligent actions of staff members which includes the educational psychologists, education officers, teachers, and other concerned employees (2000). Lord Slynn further stated that “though claims should not be encouraged once 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” (2000). Hence, this case seems to be a positive approach to claims or to the so-called blame culture. In Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218, the claimant who was known to be a notorious criminal, sued the local police commissioner for the injuries he sustained from leaping from his bedroom window to escape arrest (2002). Schiemann LJ rejected such a claim stating that such claim is ‘self-evidently absurd’ and that there is no policy reason in law to adopt such a course of action (2002). He explained that there is no duty on the part of the police to bar the claimant’s progress through the window in an attempt to escape from the police (2002). Hence, this case heavily dissentson the blame culture. Finally in Tomlinson v Congleton Borough Council [2004] 1 AC 46, the claimant struck his head and consequently suffered paralysis due to his having dived into a shallow water in the lake said to be owned by the defendant (2004). Claimant was said to have entered the recreational facility as a visitor but ignored the warnings placed which said ‘Dangerous Water: No Swimming’ (2004). On trial, the court rejected his claim stating that the “claimant was the author of his misfortune” (2004). The Court of Appeal through Ward LJ, allowed claimant’s appeal explaining that the risk in entering the water is not so obvious and that the defendant had the duty to prevent those entering and visiting the facility from swimming in the lake (2004). The House of Lords however rejected the said decision (2004). Lord Hoffmann explained that there were ‘individualist values of common law’ and the individual’s responsibility (2004). He also emphasized that the claimant ‘freely and voluntarily’ took the risk of diving into the water with full capacity and without pressure or inducement from anyone (2004). He stated that “Mr Tomlinson suffered his injury because he chose to indulge in an activity which had inherent dangers, not because the premises were in a dangerous state” (2004). Hence, he states that there is no duty to incur social and financial costs to protect individuals against obvious dangers (2004). Hence, this places some limit on the circumstances under which liability may arise (2004). Atiyah’s Position on Blame Culture Fostered by Judges In the book entitled ‘The Damages Lottery,’ he points to the judiciary as having fostered the blame culture through the development of doctrines that enabled more claimants to sue successfully (Atiyah, 1997). He claimed that this increased the crisis in such large proportions and he sees the blame culture as a problem in society (Atiyah, 1997). Using the case of Barrett v Ministry of Defence [1995] 3 All ER 87, the claimant was awarded over £70,000 in compensation where the employees of the defendant failed to recognize a naval airman who drank heavily and choked on his own vomit, was indeed in danger of choking to death (Atiyah, 1997). The decision stated that the defendant failed to monitor the naval airman constantly (Atiyah, 1997). Atiyah expressed that this decision is “offensive to the normal ideas of justice” (Atiyah, 1997). Atiyah also stressed that judges have the tendency to stretch the law to enable claimants to recover compensation, such as in cases of pure economic loss and mental injury and subjecting employers and public bodies to increased liability (Atiyah, 1997). Atiyah also claims the judiciary to have stretched causation doctrine (Atiyah, 1997). He also claims that judges are likely to sympathize with claimants who have suffered major injuries (Atiyah, 1997). I do not however agree with Atiyah that there is indeed a problem of blame culture or that judges has stretched negligence cases to accommodate each and every claim filed in court. As can be seen in the various cases mentioned above, most of the cases denied claimants of compensation on the ground that duty of care does not exist. Hence, the claim that judges have a tendency to stretch the law cannot be sustained. Judges therefore rule on a case to case basis and do not have a general tendency to rule in favor of claims. Furthermore, Mullender in his study of the blame culture, concluded that such a problem actually exists as the studies presented by different commentators are ambiguous (Mullender, 2006). Negligence law is composed of several factors not only confined to the pursuit of corrective justice but also identifying effective procedures to address different claims (2006). Valid claims to advance compensation claims should be balanced with ways of discouraging opportunistic claims (2006). Judges are faced everyday with difficult decisions of discouraging unjustified claims and supporting claims that serve public interest (2006). Hence, it is not a matter only of judges being generous in responding to such claims but having effective procedures that would identify which are valid claims and which are not. In the above-mentioned cases, judges have limited the scope of negligence liability and restrict the duties of care that are borne by professionals (2006). Examination must not only be confined to how judges interpret certain cases but as to how the negligence law can still effectively reach the objective of distributive justice. Blame culture in my opinion, might have been exaggerated because of some novel cases by which claimants get compensation for injuries which should have been their personal responsibility such as the case of Barrett v Ministry of Defence. This however, does not mean that each and every decision made by the court followed the same principle. As in the recent case of CBS Songs Ltd v Amstrad Consumer Electronics Plc, there has been a limitation as to claims filed in court and there is still a need to demonstrate the duty of care in order for a claim to prosper. Jurisprudence is developing and there must be some kind of examination as to the effective procedure in identifying valid claims. References Arthur J S Hall & Co v Simons [2002] 1 AC 615. Atiyah, PS, 1997. The Damages Lottery. Oxford: Hart Publishing, at p 143. Barrett v Enfield LBC [2001] 2 AC 550 at 557. Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7. Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. Department of Constitutional Affairs. Compensation Act 2006. Available at: http://www.dca.gov.uk/legist/compensation.htm [Accessed on 16 March 2009]. John Munroe (Acrylics) v London Fire and Civil Defence Authorities [1996] 4 All ER 318. Mason, JK, & McCall S., 1987. Law and Medical Ethics. London: Butterworths. p 160. Mullender, R., 2006. Negligence Law And Blame Culture: A Critical Response To A Possible Problem. Professional Negligence, 22(1), 2-31. Phelps v London Borough of Hillingdon [2000] 3 WLR 776. Powell, JL, and Stewart, R., 2002. Jackson & Powell on Professional Negligence, 5th edition. London: Sweet and Maxwell, at p 3 and ch 17. Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218. Read More