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, carelessness claims is dependent on a figure of common jurisprudence rules ; viz. that the responsibility of attention is owed to a claimant, and one time that responsibility of attention is breached by the suspect that the breach resulted in loss or hurt to the claimant.
An apprehension of the responsibility of attention and the relationship that give rise to that responsibility is necessary, this apprehension can be achieved by an analysis of the landmark instance of Donoghue v Stevenson,[ 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 sensible adult male rule even encompass the scholar driver, this driver owes a responsibility of attention to route users ; he is expected to drive with the attention of an experience driver despite his comparative rawness.[ 7 ]
There is besides the thin skull regulation which states that a suspect may be found apt for negligent harm whether the claimant has a peculiar pre-disposition which makes them more susceptible to damage. In Smith V Leech Brain & A ; Co[ 8 ]this thin skull rule was apparent. In this instance a burn occurred in the class of Smith ‘s work, this burn was to his lips. His occupation entailed raising articles with a Crane into a armored combat vehicle which contained molten metal. It was argued that because he had gotten burn on his lip it caused him to develop malignant neoplastic disease three ( 3 ) old ages subsequently, which led to his decease. In the Wagon Mound instance[ 9 ]“ the suspect takes his victim as he finds him ” . In Wagon Mound the issue of farness was addressed. In this instance the suspect was non found apt because it was stated that the trial was that of a sensible adult male, hence if the sensible adult male was non able to anticipate the harm, so the harm was excessively distant. This instance involved oil spillage in the seaport. The oil was set alight by a flicker from welders, which lit a piece of cotton which lit the oil that was drifting on top of the H2O from the spill. The fire which resulted caused a considerable sum of harm. To the habour and the boat moored. The tribunals decided that the harm caused was unforeseeable and hence excessively distant. The sensible adult male could non anticipate those ironss of events and therefore compensation is limited to foreseeable harm.
Compensation civilization is defined by the willingness of the society to utilize judicial proceeding as a manner to decide incidents, nevertheless minor, with the hope that they would be compensation for their hurts. Even if a clear nexus between the cause of the hurts and the suspect is tenuous at best. Besides being frivolous and baseless, they have a little opportunity of success, and are regarded as being timeserving. The Better Regulation Task Force argued that the term compensation civilization instead than being used to depict when a society is willing and are able to seek compensation. It better describes a society who seeks frivolous claims for compensation.[ 10 ]
This type of society is damaging because it increase the cost of insurance and the companies or concern which require insurance.[ 11 ]It is argued by some that it prevents some potentially unsafe activities and certain types of school trips, on the other manus, this prevents worthwhile trips by schools and other organisations because of the fright of being sued. This besides brood a slightly unsought economic system based on greed. David Fisher argues there is non a compensation civilization but a vulture civilization. He argues that since out of every ?1 spent 43p is spent in legal costs that the legal profession net incomes from the alleged compensation civilization.[ 12 ]Fisher claims that this greed is extended to insurance companies and the public at-large. He believes that they think of compensation as an easy manner to do money. A compensation civilization has besides been equated with a “ blasted civilization ” which raises concerns over diminishing personal duty.[ 13 ]
It is established that the civil wrong of carelessness is necessary for a compensation civilization to be, because this is the chief avenue for compensatory judicial proceeding. Prospective claimant finds negligent act as a cause for their bad luck because of the possibility of big amendss. However, there are significant legitimate and worth instances on the civil wrong of carelessness, particularly as it pertains to medical carelessness. In recent times, illustrations of medical carelessness would include Fallon v Wilson[ 14 ]where the physician overlooked the symptoms of what finally resulted in the encephalon harm of the premature babe. Relatively, in Kirby V Ashford and St Peter ‘s Hospital[ 15 ]A the suspect had intellectual paralysis which resulted from carelessness which occurred at his birth. Additionally, the civil wrong of carelessness continues to function a legitimate intent evinced by claims from victims ‘ households who died as a consequence of the Iraqi and Afghanistan wars. For case Regina ( Smith ) V Oxfordshire Assistant Deputy Coroner,[ 16 ]the instance concerned decease from hyperthermy sustained whilst he carried out his responsibilities in Iraq. Negligently Smith was non equipped to the conditions that he had to digest.
Although the old instances were legitimate and the civil wrong of carelessness is at that place to protect persons as mentioned above. There are efforts at frivolous baseless and timeserving judicial proceeding, one such effort which fuels the impression of the construct of a compensation civilization, and one which gathered legion headlines was that of Michael Sams ; he attempted judicial proceeding three times while incarcerated and succeeded in deriving compensation because the governments lost his prosthetic leg while he was in prison. Fortunately, he lost another of his frivolous claims when he attempted to acquire compensation for acquiring a bed which was “ excessively difficult ” in prison.[ 17 ]Another instance of frivolous judicial proceeding is Tomlinson 5 Congleton Borough Council this is important because the Judgess may hold closed the proverbial floodgates and halt the turning civilization of puting incrimination on the party with the perceive deeper pockets.[ 18 ]Tomlinson dived into the lake and his caput stuck the shallow sandy underside interrupting his cervix, notwithstanding, that the Congleton Borough Council had placed marks at the lake forbiding swimming. His statement nevertheless, was that the council steps to forestall his hurt was non sufficient, even though there were legion marks informing the populace that it was insecure to swim in the lake. He argued that since those marks which prohibit swimming were consistently ignored, and the council was cognizant that members of the public continued to swim at that place. Nevertheless, Tomlinson admitted that the determination to plunge into the lake was a witting one, although he was cognizant of what the danger entailed and that by so making so he could non project all the incrimination on the council. The instance was described by the Telegraph as a opinion with landmark position and it decrees that persons are responsible for their ain actions.[ 19 ]
As a whole, the bench is aware of the impression of the compensation civilization and is eager to avoid this, hence when sing instances of carelessness the judiciary tend to mistake on the side of cautiousness to forestall the gap of the alleged floodgates. This was apparent in the instance of Gorringe v Calderdale MBC,[ 20 ]where Gorringe was injured after he crashed into a coach which was on a crisp crest in the route. He argued that it is the duty of the main road authorization to warn automobilists of the possible dangers on that peculiar subdivision of the route and their failure ( or skip ) resulted in his hurts. However, the tribunals ruled that the duty to take due attention and attending is dependent on the automobilists and non the authorization. Therefore the authorization is non to fault for his hurts.
Before the Gorringe instance, there were other instances that established the possible concerns of a compensation civilization viz. , Miller V Jackson[ 21 ]A in this instance Miller attempted to halt cricket which was played on the small town evidences, cricket balls had entered Miller garden and he besides complained of the noise degree. At first, Miller was successful, nevertheless, the injunction was overturned on entreaty, and he was offered ?400 compensation, this compensation was for any old or future harm that may happen because of the cricket balls come ining Miller ‘s garden. Cases such as Tomlinson and Gorringe encouraged legislative action, and as a consequence the Compensation Act 2006 was enacted. At the debut of this Act, Catherine Fairbairn, stated that in order to forestall the compensation civilization from developing, it was of import to try to alter the perceptual experiences that leads to a fright of judicial proceeding. She argued that it was of import to better the system so that when there is a valid claim for compensation it could be addressed.[ 22 ]Notwithstanding, in many quarters the Compensation Act has been criticized, it is argued that there is no compensation civilization and that the measure is endeavouring to cover with an urban myth, this myth has been perpetrated by articles, media studies and claims direction company. This statement leads me to an analysis of articles which argue the reverse.
Attempts are made to seek to quantify whether the UK is in the throes of a compensation civilization. Lewis et Al[ 23 ]A analyses the figure of claims and seek to find whether there are tendencies that could be established for hurts caused by carelessness. However, in his article he claims that for the old ages of 1997-2006 there has been no important addition. Conversely, Williams argues in his article that the UK may hold what he termed is the antonym of a compensation civilization. He argued that the UK is sing excessively many what he calls unlawful injuries which are traveling unsalaried or what he states that in comparing with the US is low degree of compensation.[ 24 ]This posits in concurrence with the statements of the Better Regulation Task Force, this undertaking force provinces that relative to its GDP the United Kingdom has the 2nd lowest compensation figures. Williams besides states that claims which are legitimate and tenable should non be calculated or considered as portion of the turning compensation job. He farther states that these claims are illustrations of an effectual justness system.
Another theory of the commission of the urban myth could be founded in the extended advertisement in all signifiers of the media those claims direction companies. There are statements from many quarters which propose that those companies have limitations on their advertisement and this could squelch the fright of judicial proceeding. Although there is conflicting grounds of the compensation civilization in academic and judicial quarters, it is obvious that the general perceptual experience which the populace holds is that there is a inclination to seek and project incrimination on the governments or individuals who has deeper pockets.[ 25 ]This perceptual experience means that insurance companies charge higher premiums which are passed on to the populace, and hence everyone pays, this farther contributes and perpetuate the myth.[ 26 ]
By some media histories there is a proliferation of frivolous compensation claims, nevertheless there has been small to confirm this. Arguably, there has been an addition, has this addition constituted a grave or increasing job with the consequence that there is a haste for compensation this is undetermined from the facts analyzed. Therefore the existent issue is whether the UK is merely going more cognizant of their rights and as a effect more willing to litigate. By analyzing the instances there is good grounds that there has been an addition in claims of which some have been frivolous. Although Williams have suggested that there is no dependable grounds that there has been an addition in frivolous claims. It has been proposed that the insurance industry rely on subjective grounds, of a altering environment so that they could warrant addition monetary values. This monetary value addition is based on leery or bad claims, which is non truly representative of compensation claims in general. It was posit by the Chairman of Lloyd ‘s of London that there is a pillage of the economic system by a flood of claims ; nevertheless, it seems that this statement was non necessary by a disinterested member of the populace. In decision, it is apparent that there are many positions on the compensation civilization in the UK. It is obvious that the civil wrong of carelessness is the vehicle in which this dreaded disease is carried. However, because consciousness of this disease is at the head of the heads of the members of the bench, it would non be left to go a pandemic. It is apparent that the bench will forestall this from go oning, and they have been successful in their efforts