Compensation Culture throughout the UK - Essay Example

Part A I want you to explain and illustrate what is meant by ‘blame culture compensation culture’, and the judges’ attitude to it, using the following sources: • Lord Templeman in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 • Rougier J in John Munroe (Acrylics) v London Fire and Civil Defence Authorities [1996] 4 All ER 318 • Judge LJ in Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7 • Lord Slynn in Phelps v London Borough of Hillingdon [2000] 3 WLR 776 • Schiemann LJ om Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218 • Lord Hoffmann in Tomlinson v Congleton Borough Council [2004] 1 AC 46 Part B Professor Atiyah in his book The Damages Lottery identifies the judiciary as having fostered a blame culture by developing existing doctrine over a number of decades in ways that enabled more claimants to sue successfully. In the light of the cases above, and other literature, do you think this is true or do you think that the existence of a blame culture is either much exaggerated or caused by something else? Introduction The study will look at the rise in recent years, in the number of claims for compensation for injuries. Within this framework the study will consider whether the rise can be attributed to the insurgence of blame culture or compensation culture throughout the UK. In order to do this it will be necessary to define what is meant by blame culture and analyse the origins of such a culture. In considering the impact of blame culture, this study will reflect on the attitudes of judges when being asked to apportion liability, and examine case law in this area in order to explore whether recent cases demonstrate reluctance or willingness on the part of judges with regard to the apportioning of blame. Blame culture Mullender (2006) suggests that the culture of blame might stem from the emergence of professional negligence claims and personal injury claims. In his study he noted that judges had become aware of a rise in the number of claims, some of which appeared to be fake. In McLoughlin v O’Brien [1982]1 Lord Wilberforce warned that ‘…such an extension may lead to a proliferation of claims, and possibly fraudulent claims, to the establishment of an industry of lawyers and psychiatrists who will formulate a claim for nervous shock damages, including what in America is called the customary miscarriage, for all, or many, road accidents and industrial accidents’. Mason and McCall Smith (1999) have also expressed their fears that the rise in blame culture could lead to an increase in claims for medical negligence. ‘Blame culture’ focuses on the need to hold someone accountable for what might otherwise have been considered a mere accident. Atiyah (1997) suggests that the culture of blame exists not only in claims for personal injuries and losses, but also in the criminal sphere, where there is a desperate need to find the person responsible for the crime that has been committed, and to see them punished for their wrongdoing. The move towards a need for monetary compensation for harm caused. Vines (2008) argues that previously an injured party would have been prepared to accept an apology for the accident as suitable recompense for the harm caused, but with the insurgence of the ‘compensation culture’, apologies are often construed as admissions of guilt, and used in order to claim monetary compensation for the harm. The UK government has attempted to address this assumption through s2 of the Compensation Act 2006 which states that An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty. This does not stop the court allowing the adducing of such admissions in court, but is merely there to remind the court that such a course of action cannot amount to an admission. Vines (2008) also noted that since the issuing of an apology might be able to be adduced in court to suggest the liability of the person offering the apology, legal advisors are more likely to advise their clients not to apologise after an accident. Although apologies or comments made by the respondent can be used to apportion liability, there are instances in which the courts have refused to accept these as admissions of responsibility. This was the case in Muir v Glasgow Corporation 19432 the court in which the court held that the comment made by the respondent that they ‘should have acted differently’, did not amount to an admission that they were responsible for the accident. In this case Lord Thankerton made the point that ‘The court must be careful to place itself in the position of the person charged with the duty and to consider what he or she should have reasonably anticipated as a natural and probable consequence of neglect, and not to give undue weight to the fact that a distressing accident has happened or that witnesses in the witness box are prone to express regret, ex post fact, that they did not take some step, which it is now realised would definitely have prevented the accident.’ In the earlier judgment of this case, the courts had held the respondent liable based on the comments made. This decision was only overturned on appeal were Lord Thankerton and Lord Macmillan agreed that ‘an expression of regret could not be a binding admission.’ Admissions as proof of liability Problems have arisen in the courts especially in cases were the respondent has made admission of fault. In many of these cases the courts have construed such admissions to be admissions of liability and acceptance that the respondent has breached the duty of care owed to the appellant. This has been demonstrated in cases such as the Scottish case of Hogg v Carrigan’s Exr3 in which damages were awarded on te basis that the respondent had admitted fault. There have been several cases in which the respondent has requested the right to withdraw an admission of liability. Some of these cases are where the respondent has admitted liability before the appellant has commenced action against them for compensation. One such case that demonstrates this is Sowerby v Charlton4 in which the respondent has issued a statement in a letter admitting a ‘breach of duty’. The court in this case stated that under Civil Procedure Rules 1998 Part 14 the appellant was not entitled to rely on admissions made before court action had been commenced. By contract in Gale v Superdug5 the court stated that they had a general discretion to withdraw such admissions, but that the onus was on the respondent to prove that failing to withdraw the admission would prejudice the matter. The court reached a similar decision in Walley v Stoke on Trent City Council6. Attempts to address the blame culture Atiyah (1997) identified how many people had adopted a ‘blame culture’, whereby being able to apportion blame to another could result in compensation for the injured party. In an article in the Guardian written by Brown (2006) she discusses how the NHS Redress Act 2006 has been issued with the intention of curbing the activities of so-called ‘ambulance chasers’. This Act came about following a culmination of reports in to clinical negligence claims. In a report published by Sir Donaldson (2003) entitled Making Amends proposals were put forward recommending a reform of the system for medical negligence claims. The main impetus of the suggested reforms was to try to curb the compensation culture that was becoming evident within society. Sir Donaldson made the point that the aim of the report was to ‘ensure that the emphasis of the NHS is directed at preventing harm, reducing risks and ensuring safety’. In 2006 the Constitutional Affairs Committee were commissioned to report on the growing compensation culture and make suggests with regard to ways in which this could be addressed. It was as a result of this report that the NHS Redress Act 2006 came into existence. Under s1 of this Act liability for the payment of compensation up to £20,000 will be the responsibility of the NHS "in respect of or consequent upon personal injury or loss arising out of or in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or the care or treatment of any patient, and in consequence of any act or omission by a health care professional". Theoretically, this should simplify claims for those seeking damages below £20,000, assuming that negligence is admitted by the hospital trust. However, cases such as Chester v Afshar [2004]7 should serve as a warning of the likelihood of compensation having to be paid if the doctor providing the treatment fails to warn the patient of the possible dangers involved in the procedure. Stance of the judiciary towards the blame culture Judges appear to have struggled with balancing the need to apportion blame, with the desire to prevent the legal system resorting to one where monetary compensation is sought for every mishap. In CBS Songs Ltd v Amstrad Consumer Electronics Plc8 Lord Templeman voiced his concerns that apportioning blame in the manner laid down by Lord Wilberforce in Anns v Merton LBC9 would be likely to lead to a huge volume of claims. He was also concerned that the acceptance of this culture of blame could lead to bogus claims coming before the courts. In this case Lord Templeman is quoted as saying 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.’ Rougier J in John Munroe (Acrylics) v London Fire and Civil Defence Authorities10 was also keen to point out that ‘it is a truism to say that we live in the age of compensation.’ In his address in court he goes on further to state ‘it 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.’ Further in his speech Rougier acknowledges that such claims have been encouraged by the judiciary stating that ‘claims that would have been unheard of 30 years ago are now being entertained.’ This has been evidenced in cases such as Bradford-Smart v West Sussex County Council11 where a claim was made against the council for compensation after the claimant had been the victim of bullying whilst at school. Judge LJ attempted to move away from the blame culture in this case by suggesting that the mother of the claimant had exaggerated the problems experienced by her daughter. Referring to the case of Phelps v London Borough of Hillingdon12, he suggested that the claim might ‘be without foundation or exaggerated.’ It would seem from the above that many of the judiciary are loathe to encourage the blame culture, and are keen to find ways in which they can move away from this. Absurd cases such as Vellino v Chief Constable of Greater Manchester Police13 seem to make an even greater mockery of the kind of society in which we are now living. In this case the appellant sustained injuries after jumping out of a window whilst attempting to evade arrest for crimes he had committed. It was argued that such a claim should not even be considered as the appellant was solely to blame for his demise by jumping out of the window. Amazingly Sedley J reached the conclusion that the police might be held liable on the basis that they ‘had afforded the appellant the temptation to escape and given him an opportunity to do so’. Similar absurdities can be seen in cases such as Tomlinson v Congleton Borough Council14 in which the appellant had ignored signs warning him about the dangers of swimming in the lake. Although it should have been obvious to anyone that the water was too shallow to dive into Sedley J held that the respondent could only avoid liability if ‘the risk is so obvious that the occupier can safely assume that nobody will take it...’ Atiyah (1997) lays the blame on the rise in such claims on the judiciary. He argues that judges have a tendency to ‘stretch’ the law so that claimants have a greater likelihood of being compensated. In reaching this conclusion he referred to the case of Barrett v Ministry of Defence15 in which a widow was awarded £70,000 for the death of her husband despite the fact that he died as a result of drinking too much alcohol and choking on his own vomit. The case here, hinged on the fact that 2 employees of the respondent had realised that there was a danger of the deceased choking in this manner, but had failed to monitor him to ensure this did not happen. Conclusion Although some of the cases above demonstrate the reluctance of the judiciary to encourage the blame culture, the absurd findings in favour of the appellant seem to reinforce the proposition made by Atiyah that the judiciary are responsible for the continual growth of such claims. Given the abundance of case law surrounding claims for compensation it would appear that blame culture is very much in evidence in modern society. The absurd decisions noted in Vellino and Tomlinson only serve to highlight the extent of the problem. It seems unlikely that years ago such claims would ever have been entertained by the courts, let alone resulted in the award of damages. Bibliography Alexander Tabarrok & Amanda Agan, Medical Malpractice Awards, Insurance, and Negligence: Which Are Related? Civil Justice Report No. 10 May 2006 Anns v. Merton London Borough Council [1978] A.C. 728 Atiyah, P S, The Damages Lottery (Oxford: Hart Publishing, 1997) Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7 Brown, R, Curbing the ambulance chasers, Society Guardian, Thursday 23 November 2006 CBS Songs v. Amstrad Consumer Electronics plc [1988] AC 1013 Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. Compensation Act 2006 Department of Health Claims of Medical Negligence against NHS Hospital and Community Doctors and Dentists (1989) HC (89) 34 Department of Health consultation Paper 2003 Making Amends Clinical Negligence Reform Chief Medical Officer Sir Liam Donaldson Gale v Superdrug Stores plc [1996] 1 WLR 1089 Harpwood, V. 2001. ‘Clinical governance, litigation and human rights’ Journal of Management in Medicine, 15 (3), 227-241. Hogg v Carrigan’s. Exr. 49 Hurwitz, B. 1998. Clinical Guidelines and the Law: Negligence, Discretion and Judgment. Abingdon: Radcliffe Medical Press. John Munroe (Acrylics) v London Fire and Civil Defence Authorities [1996] 4 All ER 318 Jones M A, Medical Negligence, (1989) Sweet & Maxwell Mason & McCall Smith, Law and Medical Ethics, 5th Ed, 1999, Butterworths, London Mason and McCall Smith. Law and Medical Ethics, J.K. Mason, R.A. McCall Smith, G.T. Laurie, (Butterworths) 2002. Muir v Glasgow Corporation 1943 SC (HL) 3 Mullender, R, Negligence law and blame culture: a critical response to a possible problem, Professional Negligence, 2006 22(1) 2-31 NHS Redress Act 2006 Phelps v London Borough of Hillingdon [2000] 3 WLR 776 Sowerby v Charlton [2005] EWCA 1610 Tomlinson v Congleton Borough Council [2004] 1 AC 46 Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218 Vines, P, Apologies and Civil Liability in the UK: A view from elsewhere, Edinburgh Law Review, 2008 Walley v Stoke on Trent City Council [2006]. EWCA Civ 1137 Read More