Have We Gone Too Far in Compensation Proceedings - Coursework Example

Have we gone too far in Compensation proceedings? In the United Kingdom, law of torts has developed over time to include all sorts of claims. Various heads under which compensation would be claimed include negligence nuisance, assault and other actionable wrongs. The Liability of the defendants has increased dramatically in the past century because of inventions of new means of transport industrial advancements etc. Accordingly more and more people are now entitled to claim compensations for wrongs done to them regardless of the tortuous liability of the defendants. However jurists and social commentators note an increase in the tendency of claimants to claim damages for any injury to them caused by any action or any omission on the part of others regardless of whether there was a duty to care a breach of that duty. The factor of the injury being foreseeable has also been neglected in a favour of the claimants. This tendency to litigate is fuelled by the so called ‘Ambulance chasers’i.e. lawyers who instigate parties to seek redressal in court regardless of the likelihood of success in the action. It is argued that this is the result of the influence essentially of the culture of litigation in the United States. The aim of this study is to analyze whether the so called ‘compensation culture’ exists in Britain and whether the imposition of liability might be adverse to the public interest by preventing desirable activity from taking place. As a harsh reminder of the state of affairs no other incident is more empathetic than the speech delivered by the then Prime Minister Tony Blair. This was regarding risk in public policy making. Tony Blair said “We are in danger of having a wholly disproportionate attitude to the risks we should expect to run as a normal part of life. This is putting pressure on policy making … -to act to eliminate risk in a way that is out of all proportion to the potential damage. The result is a plethora of rules, guidelines, responses to ‘scandals’of one nature or another that ends up having utterly perverse consequences”1 He went on to say “Something is seriously awry when teachers feel unable to take children on school trips, for fear of being sued…where health and safety rules across a range of areas is taken to extremes.” The speech goes on to talk of a girl who sued the girl guides association because she burnt her legs on a sausage and the man who was injured as a result of his failing to apply the break on a toboggan run in an amusement park. The cases did not result in big compensation awards but leave behind a sense that huge sums of money are being wasted on the number of cases like this. The issue has become serious even for the parliament to take note a Parliamentary Committee was formed to look into the compensation culture. This report is printed on the order of the house of commerce. It is argued that the increase in litigation for compensation was because lawyers in the United Kingdom started behaving like those in the United States. In fact this was facilitated by the introduction of Conditional Fee Agreements. These were introduced by the courts and legal services act 1990. Earlier on a large class of litigants was prevented from accessing courts because they could not raise the fees necessary to be paid to the lawyers. These people had middle income by which they were not entitled to the legal aid services. The conditional fees agreements have ensured that these people can also seek redressal. But there are negative aspects of this enablement. Compensation may be sought on the basis of an injury with which the defendants action or omission may not have a direct connection. As mentioned above trivial cases also reach courts. Often the suits are frivolous but the defendants may settle matter out of court for two reasons. The defendant may want to avoid adverse publicity or the costs of a defending a suit may be prohibitive. In such circumstances the defendant thinks it a better policy to settle the matter out of Court but the publicity given by the media for such out of court settlements is counterproductive. There is another aspect to the issue. Because of the perception of enhanced risk, insurance for activities in which risk may arise such as professional practice etc. Insurance companies may charge excess premiums for insurance against liability. The government had appointed the Better Regulation Task Force to provide a report on the phenomenon of compensation culture. The report states2 In November 2004 the government issued a response paper entitled Tackling the “Compensation Culture”. In the said response it is stated “…people who have a genuine claim should be able to enforce their right to compensation …but we strongly oppose any culture where people believe if there is an injury there must inevitably someone else to blame and someone else to pay. And we oppose the people being encouraged to believe it is always worth” having a go”, however merit list the claim”. The Statutory Provisions As a result of mounting pressure from interested party the United Kingdom has enacted the Compensation Act 20063 which partly provides for and addresses issues raised by concerned parties. 1 Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might- (a) Prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) Discourage persons from undertaking functions in connection with a desirable activity. Thus the clause (b) is a tacit admission by the legislature that the total environment in which compensation is claimed and granted warrants the consideration of the likely effect of the potential liability. This is an echo of the purport of Tony Blair’s statement regarding school childrens’trips. Compensation act 2006 is a positive step towards achieving the goal of the compensation culture gaining over the time tested formula for redressal of damages arising out of torts. How the Courts have ruled The courts in United Kingdom had taken up the task of doing this by ruling immunity for the defendant against imposition of liability where the injury was not foreseeable; where there was no proximity between alleged act or omission of the defendant and the injury and where imposition of liability on the defendant would be unfair in the given circumstances. In Fowles v Bedfordshire County Council4 Justice Millett ruled that the relationship between the claimant and defendant did not exceed the defendant allowing the claimant to harm himself. In Tomlinson v Congleton Borough Council 5 Lord Hoffman observed that the claimants suffered his injuries not because the premises were dangerous buit because he chose to indulge in dangerous activities. Trustees of the Portsmouth Youth Activities Committee v Poppleton6 deals with the matter of an adult who injured himself while availing off the services offered by the defendant. The defendant had provided a bouldering wall, on which people climbed as a sport. The claimant had climbed the wall three to four times prior to the accident which he suffered while jumping as he saw another man jump. The claimant injured himself and sued the defendant. It was claimed by the claimant that the mat underneath the wall should have been firm enough to support him, though he admitted to his azction being ‘not that risky’ The crux of the matter was whether the defendants were under a duty to train or supervise adults whom they admitted to use the climbing wall. The Court of Appeal held in the circumstances that “The risk of possible severe injury from an awkward fall was obvious and did not sustain a duty in the appellants (defendants) to warn” the claimant of it. Bibliography Tony Blair, Speech on Compensation Culture given at University College London on 26 May 2005 http://www.number10.gov.uk/archive/2005/05/speech-on-compensation-culture-given-at-university-college-london-on-26-may-2005-7562 accessed 23 April 2010. In this speech, Tony Blair has talked of a trend in society which will lead to an effort on the part of certain class of individuals or government organizations to refrain from doing things which they otherwise do. This avoidance of undertakings is because of the perception that the activity will in all likelihood lead to the particular entity organizing the event or undertaking that activity to be liable for compensation which may arise out of any injury sustained by one of the participants. ‘Better Routes to Redress’ Report of the better Regulation Task Force The Compensation Act 2006, S 1 Fowles v Bedfordshire County Council [1996] ELR 51 Tomlinson v Congleton Borough Council [2004] 1AC 46 Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646 Read More