Analysis Of Growing Compensation Culture In The UK Law Essay

September 2, 2017 Law

It could be argued that Britain is progressively going litigious and a compensation civilization may be developing. This statement is non new and it is heralded from all quarters, the newspapers, political discourse and judicial determinations. Harmonizing to Stephen Byers[ 1 ]“ inordinate litigiousness affects both the economic system and the national mind[ 2 ]. ” In this essay it would be determined whether there is a turning compensation civilization in the United Kingdom ( UK ) , or an urban myth fuelled by the inordinate coverage of sensational high profile instances. A decision would be reached, by analysing the civil wrong of carelessness and a definition of a ‘compensation civilization ‘ . In order for this to be achieved there would be a reappraisal of instances, diary and newspaper articles.

Establishing Incrimination: The civil wrong of carelessness

In order to set up incrimination on the portion of a tort-feasor an analysis of the civil wrong of carelessness, specifically the responsibility of attention and the breach of that responsibility is necessary. First, a definition of carelessness, harmonizing to Lord Wright “ in rigorous legal analysis, carelessness means more than heedless or careless behavior, whether in skip or committee: it decently connotes the complex construct of responsibility, breach and harm thereby suffered by the individual to whom the responsibility was owing. ”[ 3 ]Therefore claims in carelessness rely on the undermentioned common jurisprudence rules ; that the suspect owes a responsibility of attention to the claimant, that this responsibility of attention has been breached by the suspect and that the breach has resulted in a loss or hurt to the claimant.

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To understand the responsibility of attention and the relationship that give rise to that responsibility an analysis of the landmark instance of Donoghue v Stevenson is necessary,[ 4 ]in this instance the Courts recognised a new rule, referred to at the neighbour rule. This rule encapsulates the responsibility of attention which Lord Atkin states that “ a responsibility was owed to individuals who are so closely and straight affected by my act that I ought moderately to hold them in contemplation as being so affected ” . . This rule was farther reviewed and refined by Lord Wilberforce in Anns v Merton London Borough Council.[ 5 ]

After set uping whether there is a responsibility of attention the following inquiry to be answered is whether that responsibility to attention has been breached: has there truly been carelessness. The basic regulation expounded in Blythe V Birmingham[ 6 ]which states that carelessness is the skip to make something which a sensible adult male guided upon those considerations which normally regulate the behavior of human personal businesss, would make, or making something which a sensible and prudent adult male would non make. This rule even extends to learner driver who was expected to drive with a criterion of attention of a sensible individual despite their comparative rawness.[ 7 ]

A suspect may still be found apt for negligent harm even if the claimant has a pre-disposition that made the harm worse than otherwise would hold been expected ( the thin skull regulation ) . In Smith V Leech Brain & A ; Co[ 8 ]it was found that a burn to Smith ‘s lip occurred in the class of his work ; where he is required to raise articles in to a armored combat vehicle of liquefied metal with the assistance of a Crane. The burn was a accelerator to a preexistent malignant neoplastic disease that, three ( 3 ) old ages subsequently, led to Smith ‘s decease. In the Wagon Mound instance[ 9 ]“ the suspect takes his victim as he finds him ” . This instance besides brought about the rule of ‘remoteness ‘ ; where the suspect can non be found apt if a sensible adult male could non anticipate the harm. In this instance, oil had spilled in the seaport and was set alight by a flicker from welders. The ensuing fire caused a considerable sum of harm. It was decided that this harm was unforeseeable to the sensible adult male and therefore compensation could be limited to the harm that was foreseeable.

A ‘compensation civilization ‘ can be defined as a civilization where people are speedy to utilize judicial proceeding to decide minor incidents with the hope of deriving compensation. This is frequently extended to include incidents that have tenuous links between the claimant and suspect. These instances can be described as frivolous or baseless, where they have small opportunity of wining, and are hence ‘opportunistic ‘ . As the Better Regulation Task Force[ 10 ]said:

“ The term compensation civilization is non used to depict a society where people are able to seek compensation. Rather a compensation civilization implies that a determination to seek compensation is incorrect. ”

It is argued that a litigious society is damaging as it increases the demand for insurance, and the cost of insurance.[ 11 ]Although it prevents some potentially risky activities from taking topographic point, such certain types of school trips ; as these would necessitate big insurance costs that are unaffordable. It besides brood a instead unsought greed economic system. Harmonizing to David Fisher[ 12 ]

“ While there may non be a compensation civilization, there is a “ vulture civilization ” in regard of legal fees. Figures from the Association of British Insurers ( ABI ) show that across driving and liability, for every ?1 spent on hurt claims, 43p is spent in legal costs. ”

This greed can be extended to insurance companies and the general populace who think of compensatory claims as a manner to do easy money. A compensation civilization has besides been equated with a ‘blame civilization ‘ and raised concerns over diminishing personal duty.[ 13 ]

Without the civil wrong of carelessness a compensation civilization could non be, as this is the path for compensatory judicial proceeding for negligent Acts of the Apostless. Prospective claimant finds negligent act as a cause for their bad luck because of the possibility of big amendss. However, there are many legitimate and worth instances for carelessness, particularly in the kingdom of clinical carelessness. Recent illustrations include Fallon V Wilson[ 14 ]where the suspect physician neglected to detect the symptoms that should hold resulted in a referral to infirmary and led to the premature babe ‘s encephalon harm. Similarly, in Kirby V Ashford and St Peter ‘s Hospital[ 15 ]A the suspect had spastic quadriplegia as a consequence of carelessness at the clip of his birth. Further instances showing the value of civil wrong of carelessness have been seen in the claims of those enduring after the deceases of loved 1s at war in Iraq and Afghanistan, for illustration Regina ( Smith ) V Oxfordshire Assistant Deputy Coroner.[ 16 ]In this instance Smith died from hyperthermy sustained whilst transporting out his responsibilities in Iraq, when he should hold been equipped to the conditions that he would hold to digest.

Even though there are meriting instances for carelessness, there are those that encourage the construct of a ‘compensation civilization ‘ , these instances meet my earlier definition as frivolous, baseless and timeserving. One complainant, that was a popular topic for the media, was Michael Sams ; who three times attempted judicial proceeding whilst he was held in gaol, wining one time in deriving compensation after the prison governments lost his unreal limb. However, he failed in his effort to action for his prison bed being ‘too difficult ‘ .[ 17 ]The instance of Tomlinson v Congleton Borough Council was considered a cardinal instance in finding the boundary of frivolous judicial proceeding.[ 18 ]Tomlinson had dived in to a lake that was on Congleton Borough Council belongings, where swimming was prohibited. Tomlinson argued that the council had non taken adequate stairss to forestall his hurt, and that the notices forbiding swimming were ineffective as they had been ignored by others in the yesteryear. However it was shown that he had made the determination to plunge whilst to the full cognizant of the dangers of making so, and hence could non impute the incrimination to the council. The Telegraph described the instance as “ a landmark opinion which decrees that persons must take duty for their ain actions. ”[ 19 ]

The bench is really cognizant of the repute of a ‘compensation civilization ‘ and is acute to avoid this state of affairs, so when sing instances of carelessness they act to restrict the range of floodgates liability. One such instance where this would hold been considered was Gorringe 5 Calderdale MBC,[ 20 ]where Gorringe was injured after crashing in to a coach on a crisp crest in the route. Gorringe argued that the main road authorization should warn drivers of the possible dangers on this subdivision of route, and were negligent in non making so. However, the tribunal decided that Gorringe should hold been driving with proper attention, and could non fault the council ‘s deficiency of warning notices.

An earlier instance that demonstrated the possible concerns of a ‘compensation civilization ‘ was that of Miller V Jackson[ 21 ]A where Miller attempted to forestall cricket from being played at the small town cricket nine, as on occasion cricket balls had entered Miller ‘s garden. Initially Miller was successful, but the injunction was overturned on entreaty, and alternatively Miller was offered ?400 compensation for any old or future harm that might happen due to cricket balls come ining Miller ‘s garden. Cases such as Tomlinson and Gorringe encouraged legislative action, and resulted with statute law such as the Compensation Act 2006. When this measure was introduced Catherine Fairbairn described its coveted actions as follows:

“ to forestall a compensation civilization from developing, to undertake perceptual experiences that could take to a disproportional fright of judicial proceeding and to risk-averse behavior, to deter and defy bad claims and to better the system for those with a valid claim for compensation. ”

However, the Compensation Act has been criticized for trying to undertake an urban myth, which has been perpetuated by media studies. This leads me to discourse whether the UK has a compensation civilization.[ 22 ]

Some efforts have been made to quantify whether the UK suffers from a compensation civilization. Lewis et Al[ 23 ]A looked to tendencies in Numberss of claims being made for personal hurts and saw no important alteration between 1997 and 2006. However, Williams states that we may hold the antonym of a compensation civilization: ” It may be that excessively many unlawful injuries in some countries go unsalaried or that compensation degrees are low, relatively talking. ”[ 24 ]This agrees with the Better Regulation Task Force where the United Kingdom has the 2nd lowest figures for compensation when compared relative to GDP. Williams besides argues that “ legitimate, tenable claims ” should non be considered as portion of the job ; as these are illustrations of justness being served. There is some understanding that the perceptual experience of a ‘compensation civilization ‘ is founded in media coverage and telecasting advertisement for claims direction companies. Lord Young suggests that limitations should be placed on how claims direction companies can publicize their services, as this drives a fright of judicial proceeding.

Despite this grounds that a ‘compensation civilization ‘ does non look to impact the UK, it is clear that public perceptual experience thinks otherwise ;[ 25 ]and this means that insurance companies and the populace have to cover with some of the results of this. This will take to frighten narratives and farther perpetuate the myth of the compensation civilization.[ 26 ]

Decision

In decision, it is clear that the rules of civil wrong of carelessness could promote a compensation civilization if they were kept unbridled. However the actions of the bench will look to forestall this from happening, and have so far been successful in their efforts. By the proliferation of stuff that argues that the figure and extent of hurt claims has risen it seems that this is the determinate factor which dictates the moral and economic status of the UK. The inquiry so, is the UK fast going less tolerant and more litigious? Unfortunately, there is small grounds to propose or supply a resolutely consistent reply. It seems that by analyzing the instance jurisprudence that there is good grounds that some kinds of accident claims have risen and that at that place seems to be a certain sum of frivolous claims. However, whether this addition constitutes a grave or instead increasing job is undetermined. Harmonizing to K. William[ 27 ]who suggests that there is virtually no dependable grounds about the figure of bogus or overdone claims or whether they constitute a grave ( or increasing ) job. What has been credibly suggested is that ‘some insurance industry observers rely to a great extent on anecdotal grounds of a declining environment in order to warrant monetary value additions, citing single instances of extremely dubious or bad claims that can non be genuinely representative of claims in general ‘ . When Lord Levene, the Chairman of Lloyd ‘s of London, complains that a ‘deluge ‘ of claims is ‘plundering the economic system ‘ , we sense that this may non be a wholly disinterested appraisal.

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