Tort Of Negligence And Its Contribution To Compensation Culture

Negligence is a civil wrong based on the relationship between two parties, focusing on the doctrine known as neighbourhood. A compensation culture is one where there is an obligatory feeling to ‘blame, claim and gain’ once an individual has been wronged. This essay argues that negligence claims can create a compensation culture and costly redress is often sought through the courts. However, there are other effective ways of seeking justice within a negligence claim.

The Judicial Studies Board provides guidelines for judges regarding how to calculate compensation. There are set guidelines but it becomes challenging for a judge to consider a factor such as degree of pain, as seen in Ball. There are no definite guidelines for such loss so judges may be inconsistent which opens up potential for excessive redress provided by the courts.

Compensation culture is a loaded term which assumes that claiming is problematic, however this does not mean that there is a problem. Over half of the claims from The Accident Group, a previous Claims Management Company (CMC), could not be found. The Compensation Act 2006 helps to tackle spurious, fraudulent claims which disingenuously receive redress through the courts. All of which contribute to the perception that negligence claims will always receive compensation.

It is undeniable that some negligence claims do result in costly redress through the courts. A very prominent example from America is the ‘McDonalds coffee case’ where Mrs Liebeck was awarded $640,000 in damages as a result of a spillage of coffee. This is an extremely high amount of compensation awarded. But the fear of litigation could promote better risk assessments making our day-to-day lives safer, reducing the number of claims in negligence which contribute to the compensation culture.

In B , McDonalds did not owe a duty of care where 36 claimants had been burned by hot beverages. This ruling is significant, highlighting that the courts will not always provide redress. The courts have avoided the opening of floodgates for such trivial claims limiting the contribution which the law of negligence has for the creation of a compensation culture.

Why should claimants be left injured without compensation? Tort Law is so concerned with justice, what is undesirable about compensating victims for their losses suffered? The NHS Redress Act 2006 is an alternative to litigation providing quicker redress for low value clinical negligence cases. Jane Kennedy (the previous Health Minister) presents that the statute “means fairness for patients, not fees for lawyers…an important step in preventing a US style litigation culture”. The English legal system is thankfully moving away from a style of litigation seen in Liebeck and is providing alternative schemes for those seeking compensation for losses through negligence. Redress does not always have to be sought in domestic courts.

Pursuing a human rights claim through the European Court of Human Rights (ECtHR) is an alternative to domestic courts. Osman v UK arose from Osman v Ferguson and the ECtHR found the claim was successful on some grounds as there was a “real and immediate risk to life”. Negligence claims against the police are likely to fail so the route of a human rights claim is favourable. In DSD the claimants Article 3 rights had been breached. Further demonstrating how justice can be sought for a negligence claim using a human rights standing point.

Compensation is about restoring the ‘status quoante’. National insurance may be an educationally superior method of providing compensation than relying on the state, erasing redress provided by the courts. National insurance would place ethical retribution against the offender as ‘the actual tortfeasor never pays’ due to the reliance upon third party insurers and the courts. The Workmen’s Compensation Acts adopted this course where employers paid for their workmen’s compensation instead of the courts. Demonstrating how this could be an effective course of action.

We naturally think about compensation after an accident and expect it. CMC’s offer accessible services which help people to claim compensation and achieve justice. There are over 2,500 CMC’s registered for personal injury work and this growth is fuelled by the privatisation of funding for personal injury claims in 2000. CMC’s provide an alternative route to claim; a positive step for the perception that a compensation culture is ever growing.

The abolishment of legal aid encourages costly redress sought through the courts. Financial assistance is unavailable unless there are exceptional circumstances. As legal aid is predominantly inaccessible, seeking redress through the courts is the only option for some individuals. If this is the only way to achieve justice, why is claiming through the courts viewed as negative?

Conditional Fee Arrangements (CFA’s) are a suitable method for someone to be compensated if they cannot access legal aid. However, it can be difficult to find a lawyer who is willing to act on a no-win, no-fee basis. Alternative methods to seek justice exist but does this contribute to the ever growing number of negligence claims?

The compensation culture is contributed to by the law of negligence. There are around 850,000 adverse events annually within the NHS, half of which are avoidable. Individuals should be able to claim compensation for events which could have been avoided. Should it be up to the courts to compensate for a medical professional’s mistakes?

A compensation culture is a problem. The cost of claims for personal injury since 1974 could have paid for 22,700 more nurses. Claimants may recover quickly from minor injuries and emerge over-compensated. Of course individuals deserve to be compensated, but the compensation culture has become so popular that individuals are unable to accept personal responsibility for their own misfortunes.

This essay demonstrates that there are alternative methods to seek compensation and if used appropriately can provide adequate redress for claimants. The domestic courts may be the automatic response in order to seek justice but unconventional methods, such as human rights claims can also result in favourable outcomes for individuals.