It is a commonly held misconception that the United Kingdom is in the grip of a ‘compensation culture’, a perception stimulated by the media in headlines such as “health and safety chiefs ban candy floss sticks” and “health and safety risks stop children playing ‘pin the tail on the donkey’”, whereas the Health and Safety Executive (HSE) has banned very little outright.
Despite the lack of evidence supporting the existence of a compensation culture, the personal injury litigation system is attracting fresh attention from the media as report is announced by the Rt. Hon Lord Young of Graffham, into the growth of the compensation culture.
Leigh Day had hoped that the report would dispel the myth of the existence of a ‘compensation culture’ and calm the media-led hysteria, which has undermined objective attempts to dispel a lack of understanding of the difference between an accident and negligence with proper statistical analysis.
Statistical evidence
The Compensation Recovery Unit statistics show that in each year from 2000-2010, in almost all categories of claims except motor claims (i.e. clinical negligence, employer liability, public liability, motor claims and others) the number of reported cases has declined.
Current law
The statutory law governing health and safety law is found in what practitioners refer to as the HSE’s “six pack” regulations, which consist of six of the most widely quoted health and safety regulations.
Historical and current case law shows that the courts are conscious of and already manage the balance between a reasonable risk and the social benefit of an action.
Lord Young’s proposals
Some of the 40 recommendations made by Lord Young are likely to include:
- People who perform “good Samaritan” acts which, through no fault of their own cause others a personal injury should no longer be subject to law suits.
- Members of the emergency services, including part-time police officers, should not be able to be sued when they have risked life and limb to save others.
- Teachers should no longer have to fill in huge numbers of “risk assessment” forms before taking children on trips. A simple consent form, signed by parents should be enough.
- Schools should not be liable for injuries suffered by children on trips or when playing sports – except where there has been “reckless disregard”.
- Fireworks displays, street parties and concerts should not be able to be banned by local councils or officials on health and safety grounds.
- Lawyers who charge success fees in “no win no fee” agreements should no longer be able to recover these fees from defendants.
- Lord Young has also acknowledged the role of referral agencies in exacerbating fears around health and safety and how easily compensation can be claimed, as a genuine concern.
Analysis of Lord Young’s proposals
We believe there is no compensation culture. What is needed is increased public awareness of the difference between an accident and negligence, and that no-one will win a case against someone who they may think is responsible for an injury, if that injury has been caused as a result of an accident.
However, whilst it is right to periodically review whether we are becoming over-regulated with health and safety rules, it is important for the Government, when conducting such a review, to give proper statistical examples or show case law where Courts have ‘gone too far’, so that the full facts can be established.
For example, if you go behind the ‘headline grabbing’ wording used in some of the recommendations set out above and look at the research, you would see for example that the concern over the number of school trips declining due to fear of litigation is highly exaggerated. Research conducted by the Countryside Alliance Foundation (TCAF) demonstrates very clearly that of the millions of individual school trips taken over the past 10 years, only 264 ended in legal action and in only 156 of those cases were schools found to be culpable. Between 1998 and 2008, the total amount of compensation paid, on average, by local authorities in relation to school trips was just £293.44 a year.
Lord Young’s acknowledgement of the need to address the role of referral agencies is however to be welcomed as are the proposals made by the Association of Personal Injury Lawyers (APIL) in their response to Lord Young’s consultation.
Conclusion
It is important that the issues of banning toothpicks in restaurants and people from knitting on aeroplanes are not mixed up with a very different issue, that of employer’s liability cases.
Lord Young’s proposals if implemented in full would run risk of increasing the number of accidents through reduced health and safety regulations whist at the same time making it virtually impossible for an injured person to obtain proper redress.
Instead of reducing the levels of protection health and safety law provides, the Government should focus on educating the public to reassure them and explain how regulations protect people, and show the difference between an accident and a legal claim. APIL is already trying to tackle this problem by developing factsheets and working with consumer advisory groups, but leadership from senior political figures is also needed to dispel the compensation culture myth.
Alexandra Lush is a personal injury solicitor in the accidents and disasters team at specialist personal injury law firm Leigh Day & Co. A version of this article was published in the Solicitors Journal 4.10.10
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