The Compensation Act 2006 was enacted at the terminal of July 2006 and intended to turn to increasing concerns of a ‘compensation civilization ‘ in the United Kingdom. However, in the authorities ‘s debut to the Compensation Bill there is no clear definition of what constitutes a ‘compensation civilization ‘ leaving room for academic unfavorable judgment. Academicians and legal practicians have addressed this issue as a myth fuelled by lurid headlines in the imperativeness and since Parliament rushed to pass on the affair has led to big contention.[ 1 ]The chief ground for this argument is that subdivision 1. of the Compensation Act 2006 does non present something new to the bing jurisprudence, but merely codifies the bing common jurisprudence found in the opinion of Tomlinson v. Congleton BC[ 2 ]. For the intent of this essay, I will concentrate on subdivision 1 of the Compensation Act which deals with the ‘deterrent consequence on possible liability ‘[ 3 ]and analyze the extent to which this subdivision has been applied.
First I will analyze how the common jurisprudence addressed the deterrent consequence of possible liability on desirable activities. The taking instance in this field is the instance of Tomlinson v Congleton BC[ 4 ]which outlined that the tribunals are prepared to govern in favor of the suspect in order to forestall judicial proceeding which will interfere with the enjoyment of societal activities by the balance of the populace. As Lord Hoffmann indicated in his opinion that there are of import inquiries of freedom at interest and it would be unreasonable for the tribunals to enforce a responsibility to protect irresponsible visitants against obvious dangers which would ensue in discouraging sensible persons from basking mundane activities.[ 5 ]Furthermore, Lord Hobhouse outlined in his opinion that: “ it is non, and should ne’er be, the policy of the jurisprudence to necessitate the protection of the foolhardy or foolhardy few to strip, or interfere with, the enjoyment by the balance of society of the autonomies and comfortss to which they are justly entitled. This opinion is what subsequently became s.1 of the Compensation Act 2006.
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The Compensation Act 2006 did non nevertheless specify what constitutes a ‘desirable activity ‘ and has been the topic of unfavorable judgment since this will take to an addition in dearly-won satellite judicial proceeding to specify what constitutes a ‘desirable activity. ‘[ 6 ]On the other manus, a suggestion was made by Lord Hoffmann in Tomlinson v Congleton BC as to what constitutes a desirable activity, and he indicated that a balance must be drawn between the likeliness that person may be injured, the earnestness of the hurt, but besides the societal value of the activity which gives rise to the hazard and the cost of preventative steps. He illustrated his statement with illustrations from Bolton v. Stone[ 7 ]and Jolley v Sutton London Borough Council.[ 8 ]
Another instance which includes the issue of ‘desirable activities ‘ is the instance of Cole v. Davis Gilbert[ 9 ]nevertheless no mention was made to the Compensation Act 2006 even though the opinion was given in 2007 one twelvemonth after the Act was enacted. In the chief opinion of this instance Baker LJ highlighted that pure accidents do go on and it is non for the jurisprudence to enforce a higher criterion of attention since this will discourage people from organizing events of societal value.[ 10 ]Additionally the instance of Trustees of the Portsmouth Youth Activities Committee v. Poppleton[ 11 ]besides makes no mention to the Compensation Act 2006, which adds to the statement that s.1 of the Compensation Act 2006 simply amounts to a restatement of bing common jurisprudence which Judgess are loath to mention to. This statement was besides emphasized in the opinion of Justice Field in Uren v. Corporate Leisure ( UK ) Limited[ 12 ]that the Act adds nil to the bing jurisprudence.[ 13 ]
Additionally a instance which made mention to the Compensation Act 2006 was the instance of Scout Association v. Barnes[ 14 ]were Jackson LJ stated that it is non the map of the jurisprudence of civil wrong of carelessness to extinguish every atom of hazard or to stomp out socially desirable activities. Declaring that this rule is now protected by s.1 of the Compensation Act 2006 nevertheless, the proviso was non in force at the clip of the claimant ‘s accident but has been in the common jurisprudence through the pronouncement of Tomlinson v Congleton. An alternate instance which made mention to the Compensation Act 2006 is Hopps V Mott MacDonald Ltd[ 15 ]were Justice Christopher Clarke did non accept that s.1 should merely be applicable to activities such as the proviso of public comfortss or the playing of athleticss and non to a claim for personal hurts suffered in theater. He believed that the Reconstruction of a tattered substructure after a war should besides be considered a desirable activity, therefore giving the term ‘desirable activity ‘ a much broader definition. As a consequence desirable activities could include medical intervention and instruction as in the instance of Phelps v. London Borough of Hillingdon[ 16 ], which would take to a inundation of claims and really worsen the ‘compensation civilization ‘ which the Act sought to extinguish. We must wait to see what consequence this subdivision will hold on the proviso of medical intervention since it could besides be included in the broad significance of desirable activities.
Most faculty members and legal practicians do non believe that subdivision 1 of the Compensation Act 2006 will hold any good consequence. Since the tribunals already take into history the possible hindrance consequence on societal activities through the common jurisprudence. However, it should be emphasized that subdivision 1 is merely concerned with the “ attack of the tribunal to measuring that inquiry of fact and non with what the criterion of attention should be, nor whether the suspect owed a responsibility of attention to the claimant. ”[ 17 ]Furthermore the trial in subdivision 1 of the Act is to be applied at the discretion of the tribunal, in other words the justice can use it if he believes it is applicable which in my sentiment does non safeguard the suspects since this proviso is non compulsory.
In decision a chief inquiry comes to mind. If the legislative act does non alter the jurisprudence, why have it at all?[ 18 ]This proviso will merely do confusion to the claimants since the legal practicians are cognizant of this proviso through the Tomlinson instance. Furthermore this proviso could hold inauspicious effects on the authorities ‘s purpose to undertake the ‘compensation civilization ‘ since it could promote the suspects to seek judicial reading of what constitutes a socially desirable activity. Furthermore since subdivision 1 does non change the bing common jurisprudence it can be argued that it does non protect desirable activities to any farther extent than what the common jurisprudence did. However, one can reason that from the judgement of the Hopps instance the range of what constitutes a desirable activity has increased go forthing room for judicial creativeness to include activities such as instruction and medical intervention in this definition. In my sentiment we have non yet seen the effects of subdivision 1 of the Compensation Act 2006 and we shall detect them in the close hereafter.
A Dugdale and M Jones ( explosive detection systems ) , ‘Clerk & A ; Lindsell on Torts ‘ ( 20th ed Sweet & A ; Maxwell London 2010 )
Professor Anthony Dugdale and Professor Michael Jones explore a scope of issues refering the deterrent consequence of possible liability. He examines the rightfulness of protecting desirable activities together with an illustration of the development of common jurisprudence after the judgement of Tomlinson such as the instance of Hopps v. Mott MacDonald. Furthermore, he evaluates to a big extent subdivision 1 of the Compensation Act utilizing helpful mentions to legal faculty members diaries. These aided me in a much broader apprehension of the issue.
Christopher Walton ( erectile dysfunction ) , ‘Charlesworth & A ; Percy on Negligence ‘ ( 12th ed Sweet & A ; Maxwell London 2010 )
Christopher Walton explores the range of subdivision 1 of the Compensation Act 2006 through relevant instance jurisprudence. One of the instances which he refers to is Phelps v. London Borough of Hillingdon were he examines the judgements to see whether the proviso of instruction is considered to be an activity of societal value and therefore be protected under subdivision 1. Furthermore, the editor offers a utile treatment of the common jurisprudence responsibility to safeguard desirable activities.
John Cooke, ‘Law of Tort ‘ ( 8th erectile dysfunction Pearson Longman, Essex 2007 )
John Murphy, ‘Street on Torts ‘ ( 12th erectile dysfunction Oxford University Press, Oxford 2007 )
V Bermingham and C Brennan, ‘Tort Law Directions ‘ ( 2nd erectile dysfunction Oxford University Press, Oxford 2010 )
Alec Samuels, ‘The Compensation Act 2006: Helpful or Unhelpful for Doctors? ‘ ( 2006 ) MLJ 74 ( 171 )
This journal article looks at the range of subdivision 1 of the Compensation Act 2006 with respects to medical intervention. The writer looks at the judgements in Tomlinson to see if medical intervention is implied to be a socially desirable activity. Furthermore he besides criticizes the Act saying that it should non hold been enacted since it adds nil to bing jurisprudence and could take to more judicial proceeding to clear up the significance of desirable activities.
Andrew Parker, ‘Changing the Claims Culture ‘ ( 2006 ) 156 NL.J 702
Kris Lines, Jon Heshka, ‘Falling in Line with the Law ‘ ( 2008 ) 158 NLJ 1026
Ravi Nayer, ‘Personal Injury: Being Responsible ‘ ( 2009 ) 159 NLJ 1420
Rebecca Herbert, ‘The Compensation Act 2006 ‘ ( 2006 ) J.P.I. Law 337
Rebecca Herbert is a barrister in the Fieldss associating to personal hurts and besides the editor of Personal Injury Quantum Reports ( P.I.Q.R. ) In this diary article Rebecca Herbert examines the purposes of the Compensation Act 2006 which introduced into legislative act the judgement of Tomlinson, the allotment of liability in mesothelioma instances, and the ordinance of the claims direction industry. In this diary she explores the range of subdivision 1 of the Compensation Act 2006 by sing the arguments which took topographic point in Parliament during the passing of the Bill. She besides addresses the compensation civilization and characterizes it as a myth created by the irresponsible media. Finally she analyses the judgements in Tomlinson to set up what constitutes a desirable activity.
Richard Woodward, ‘Personal Injury Law in Parliament – a Busy Couple of Years ‘ ( 2007 ) J.P.I. Law 309
Richard Woodward is the Parliamentary Officer for the Association of Personal Injury Lawyers ( APIL ) . In this article he foremost looks at the events which occurred before the passing of the Compensation Act 2006 such as Tony Blair ‘s address to the Institute of Public Policy Research were he introduced the construct of a compensation civilization. Furthermore he besides outlines the inauspicious effects that could originate from the Compensation Act such as confusion and farther judicial proceeding. Finally the writer besides looks at the other purposes of the Compensation Act 2006 such as mesothelioma and the claims regulative system.
Roddy Macleod, ‘Personla Injury / Occupiers Liability: What do you intend it ‘s my Mistake? ‘ ( 2010 ) 160 NLJ 567
Cole v. Davies Gilbert [ 2007 ] EWCA Civ 396, 2007 WL 919550
Hopps V Mott MacDonald Ltd [ 2009 ] EWHC 1881 ( QB ) , 2009 WL 2207440
Phelps v. London Borough of Hillingdon [ 2001 ] 2 A.C. 619
Scout Association v. Barnes [ 2010 ] EWCA Civ 1476, 2010 WL 5139385
Tomlinson v Congleton BC [ 2003 ] UKHL 47, [ 2004 ] 1 A.C. 46
Trustees of the Portsmouth Youth Activities Committee v. Poppleton [ 2008 ] EWCA Civ 646, [ 2009 ] P.I.Q.R. P1
Uren v. Corporate Leisure ( UK ) Limited [ 2010 ] EWHC 46, [ 2010 ] N.P.C. 7