What drives rising personal injury claims?
Personal injury claiming has undoubtedly increased dramatically since the 1970s. Despite claims being ‘relatively stable’[1] between 2000 and 2006, claims have ‘risen in each year since’[2] then to almost 1 million. This is more than four times their 1973 level.[3] This article will suggest that concerns about rising number of claims are driven by right-wing political ideology, rather than a genuine concern for tort law.
The law has not changed significantly to favour claimants and, therefore, legal changes have not been a driver in the growth of claims.[4] If anything, the courts are more concerned by the ‘evil consequences’[5] of compensation culture. Lord Scott worried that we were imposing a ‘grey and dull safety regime’[6] and Lord Steyn suggested ‘courts must not contribute to the creation of a society bent on litigation’[7]. Therefore, it is clear that the Law Lords saw the key driver of compensation culture as expansions in liability and, admittedly, decisions like Fairchild[8], which expanded the scope of causation in personal injury, indicate some marginal growth. However, this seems a ‘sensationalised, politicised, selective and romanticised’[9] view. The duties and standards governing road traffic accidents, employers liability and occupiers’ liability have remained the same since the 1970s[10]. Outside of the comments in Tomlinson, there is ‘no real emphasis’[11] on compensation culture. Courts tend to shy away from policy concerns and conclude it is ‘fair, just and reasonable to leave things as they are’[12]. As Ward LJ suggested, it would be better ‘to forget’[13] concerns of judicial activism. Therefore, the quadrupling of claims must stem from outside of duties of care.
Nor are increased claims caused by funding arrangements. Lord Young suggested that the introduction of CFAs, ATE insurance and alternative business structures in the Access to Justice Act 1999 were the underlying cause of the ‘problem’ of growing claims[14]. This seems unlikely. Firstly, claims almost trebled between 1970 and 2000[15] and, as noted above, stabilised after 1999. Furthermore, Lord Young seems primarily concerned about claims management companies seeking out new claimants through referral fees and advertisement. This makes his conclusion even more limited. Referral fees were banned by LASPOA s56 following Jackson’s description of them as ‘abhorrent’[16]. Admittedly, Lewis suggested that alternative business structures simply allowed ‘such payments “in house”’[17] in amalgamated CMCs and law firms. Nevertheless, claims numbers have not really changed at all since then. Given that there is ‘no doubt new business models will emerge’[18] it is more likely that, rather than Young’s simplistic explanation, there are underlying causes of increasing claims numbers that have also created a market for claims management companies. Looking only at funding seems to be a shallow analysis. Furthermore, there is no adequate justification for criticising the increase in claims for legitimate, albeit small, injuries. It could equally be presented as an important form of accountability for defendants and increase in support for those wrongfully injured[19]. Clearly, the funding of litigation belies a true understanding of both what we mean by compensation culture and what causes it.
The increase in claims reflect a Thatcherite focus on the promotion of self-reliance, autonomy and a declining provision of welfare. Unfortunately, this seems to be ‘pursuing public law through private law’[20]. Victims require compensation and individual responsibility has lead to a heightened perception of rights pitted against others[21] in the civil justice system. Replacing legal aid with CFAs was a further ‘attempt to squeeze public provision into a private model approach’[22] at the turn of the century. In this way funding arrangements reflect a belief that going to court is a ‘failure’. Increases in claims are seen as a social decline of ‘greedy lawyers and self-pitying claimants’. However, compensating injury has important functions in relation to ‘social justice, economic stability and social order’[25]. Furthermore, the economic benefits of a well-functioning tort system are disregarded, despite the common conflation between social autonomy and free-market ideology. Tort law forces those engaged in risky activities to internalize the social cost of their actions. Therefore, compensation for injury encourages a socially efficient level of precaution to be taken. Unless the rising number of claims reflects a specious duty of care, there is nothing to be concerned about.
As such, despite significant public confusion about the purpose of tort, underlying political values[26] have driven rising claim numbers. Funding arrangements have played a part in this, but only so far as they are a tool to implement political will. These regrettable developments seem to be based on unfounded concerns, but lead to very real harms for accident victims.
[1] A Morris, ‘Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury’ (2007) 70 MLR 349 [377]
[2] R Lewis, Compensation culture reviewed: incentives to claim and damages levels (2014) JPIL 209 [201]
[3] R Lewis and A Morris, Challenging views of Tort Part II (2013) Journal of Personal Injury Law 137 [140]
[4] PS Atiyah, The Damages Lottery (1997, Hart) Chapters 2 and 3
[5] Tomlinson v Congleton Borough Council and Another [2004] 1 A.C. 46 [81]
[6] ibid [94]
[7] Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 [2]
[8] Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UKHL 22
[9] A Morris (n1) [350]
[10] P Cane, Atiyah’s Accidents, Compensation and the Law (2013, 8th Ed, CUP) [191]
[11] K Stanton “Decision-Making in the tort of negligence in the House of Lords” (2007) 15 Tort Law Review 93 [104]
[12] ibid [105]
[13] Corr v IBC Vehicles [2007] Q.B. 46 [68]
[14] Lord Young, Common Sense, Common Safety (2010, HM Government) [19]
[15] R Lewis and A Morris (n3) [140]
[16] Jackson, Review of Civil Litigation Costs: Final Report (2009, TSO) [4.12]
[17] R Lewis, Compensation culture reviewed: incentives to claim and damages levels (2014) JPIL 209 [217]
[18] J Peysner, Impact of the Jackson reforms: Some Emerging Themes (2014, CJC) [8]
[19] R Lewis and A Morris (n3) [144]
[20] M Lunley and K Oliphant, Tort Law: Text and Materials (2013, 5th ed, OUP)
[21] P Cane(n10) [190]
[22] R Moorhead, ‘CFAs: A Weightless Reform of Legal Aid?’ (2002) 55 Northern Ireland Legal Quarterly 153 [154]
[23] H Genn, Why the Privatisation of Civil Justice is a Rule of Law Issue (2012, 36th F A Mann Lecture, Lincoln’s Inn) <https://www.ucl.ac.uk/laws/judicial-institute/layout-components/36th_F_A_Mann_Lecture_19.11.12_Professor_Hazel_Genn.pdf> (accessed 17/01/17)
[24] M Galanter, ‘A world without trials’, (2006), Journal of Dispute Resolution, 7 [20]
[25] H Genn, Judging Civil justice (The Hamlyn Lectures), (2009, CUP) [17]
[26] M Galanter, The Radiating Effects of Courts, in K. Boyum and L Mather (eds), Empirical Theories About Courts (1983, Longman) [117]
[27] Peysner, Impact of the Jackson reforms: Some Emerging Themes (2014, CJC) [8]
Bibliography
Cases
Corr v IBC Vehicles [2007] Q.B. 46
Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002] UKHL 22
Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 [2]
Tomlinson v Congleton Borough Council and Another [2004] 1 A.C. 46
Articles
Galanter M, ‘A world without trials’, (2006), Journal of Dispute Resolution, 7
Genn H, Why the Privatisation of Civil Justice is a Rule of Law Issue (2012, 36th F A Mann Lecture, Lincoln’s Inn) https://www.ucl.ac.uk/laws/judicial-institute/layout-components/36th_F_A_Mann_Lecture_19.11.12_Professor_Hazel_Genn.pdf
Lewis R, Compensation culture reviewed: incentives to claim and damages levels (2014) JPIL 209
Lewis R and Morris A, Challenging views of Tort Part I (2013) Journal of Personal Injury Law 69
Lewis R and Morris A, Challenging views of Tort Part II (2013) Journal of Personal Injury Law 137
Moorhead R, ‘CFAs: A Weightless Reform of Legal Aid?’ (2002) 55 Northern Ireland Legal Quarterly 153
Morris A, ‘Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury’ (2007) 70 MLR 349
Peysner M, Impact of the Jackson reforms: Some Emerging Themes (2014, CJC)
Stanton K,“Decision-Making in the tort of negligence in the House of Lords” (2007) 15 Tort Law Review 93
Books
Atiyah PS, The Damages Lottery (1997, Hart)
Cane P, Atiyah’s Accidents, Compensation and the Law (2013, 8th Ed, CUP)
Genn, Judging Civil justice (The Hamlyn Lectures), (2009, CUP)
Jackson, Review of Civil Litigation Costs: Final Report (2009, TSO)
Lunley M and Oliphant K, Tort Law: Text and Materials (2013, 5th ed, OUP)
Lord Young, Common Sense, Common Safety (2010, HM Government)
Contributions to Edited Books
Galanter M, The Radiating Effects of Courts, in K. Boyum and L Mather (eds), Empirical Theories About Courts (1983, Longman)
McIvor C, Jackson and Access to Justice in Working Group On Civil Litigation Costs: On A Slippery Slope, A Response To The Jackson Report (2011)
Morris A, The ‘Compensation Culture’ and the Politics of Tort in Arvind & Steele: Tort Law and the Legislature (2013, Hart)
Data
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/516772/settlements-recorded-cru-2014-15.csv/preview (accessed 10/01/2017)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/516771/cases-registered-cru-2014-15.csv/preview (accessed 10/01/2017)