I first blogged about Fake Law in November[i]
and said that this was an extremely important book which shows how the powerful and ignorant corrupt justice without our knowledge.[ii]
The Secret Barrister debunks the lies and reveals the stupidity, malice and incompetence behind some of the biggest legal stories of recent years. Many of these are in the area of compensation culture and it is commonplace for politicians led by the media to think that there is a rampant compensation culture where for example whiplash claims are seen as an easy payday driving up costs for millions of law-abiding motorists.
Much of this is not just exaggerated but indeed completely false. Some of the stories in the newspapers are made up or highly distorted or misquoted. We are told that the National Health Service blows over £2 billion a year on paying out for clinical negligence, double what it spent in 2013 so for a journalist that means £1 pound in every £50 handed to the NHS is used to compensate harmed patients or settle lawyers’ legal fees. But the opposite argument is rarely put, that the legal system provides justice and fair financial recompense for those injured through the fault of others. That is an historically accepted hallmark for a fair society which benefits us all. Financial compensation is usually essential for those of us - including friends and family whose lives are possibly ruined by the transformative injuries they suffered at the hands of others and who through no fault of their own find themselves unable to work or to go about their normal daily lives, or in some cases unable even to care for themselves.
For well over a thousand years English law has provided for a system of compensation for citizens injured by the unlawful acts of others. Even in Saxon times there were standard amounts for injuries e.g. for the loss of a middle finger or an amputated foot. This then developed into the notion of torts that is wrongs, where causing loss and being legally actionable is what underpins contemporary personal injury law. Where a legal duty or obligation exists, and a person breaches that duty and as a result causes injury to you, the law recognises that they should offer something to put things right. By the 19th
century the courts had developed the idea of a wider concept of negligence, that is where a person is in breach of a legal duty – not intentionally, but because they have failed to take reasonable care
in discharging it – they’ll be liable for negligence.
At the same time as the courts were developing common law duties of care, Parliament was legislating to create statutory duties in certain scenarios. This led to the development of health and safety legislation which requires employers to provide, as far as reasonably practical, basics such as a safe working environment, well-maintained machinery, proper training and protective equipment. While the exact operation of these duties varies there is in all an underlying objective test of reasonableness.
Essentially the law asks three questions:
is there a duty of care (either common law or statutory)?
Has there been a breach of that duty of care i.e. has the person responsible acted objectively unreasonably?
Has a reasonably foreseeable injury been caused as a result?
If the answer to all three is ‘Yes,’ there is a viable personal injury claim.
So, when you read the story in the newspaper and are encouraged to be angry about the council paying thousands of pounds to a cleaner whose feet got trapped in a machine just ask yourself, if this was just an accident and the local authorities had done nothing wrong, why have they paid-up? Making a claim is not straightforward as there are several steps to be taken to try to resolve the issue without formal legal proceedings. If that fails, and a claim is issued and resisted by the defendant, the court will allocate the claim to a ‘track,’ depending on its value and complexity. For the smallest, most straightforward civil claims, up to £10,000 in value (or up to £1000 for personal injury cases), cases are allocated to the ‘small claims track’. (By the way there is no such thing as a Small Claims Court however much you may hear this expression in the media.) In these situations you are unlikely to be legally represented. For higher claims, the ‘fast track’ applies and then the most complex claims are allocated to the ‘multi-track’ where cases usually involve lawyers on both sides.
If a claimant wins a personal injury claim – if they can show that their injury was caused at least in part by the negligent actions or breach of statutory duty of the defendant – the court then looks to the issue of damages. While in the books of John Grisham (which I thoroughly enjoy) huge multi-million dollar punitive or exemplary damages are often awarded, this simply does not happen in negligence cases in England and Wales. Damages in personal injury are restricted to compensation which is calculated both for general damages which reflect the pain suffering and loss of amenity caused by the injury and for special damages such as loss of earnings, the cost of travelling to hospital for appointments, the cost of adapting your home or the cost of specialist medical care treatment. The court will also look at future losses, such as future loss of earnings over a fixed period of time. These are not numbers that are simply plucked out of the air. They’ll be scrutinised and argued over. Claimants are expected to take reasonable steps to minimise their losses and the damages will usually be paid over a period of time.
If you do read of a case involving a very large award do not think of it as the journalist will say as a win, but as the minimum level of compensation the courts judge for severe disability. That may mean comprehensive care for many years. When you actually analyse how much this means there is no sense that anybody has won anything. At best they are simply receiving the cost of the treatment that they will need.
Too often the journalists and the politicians fail to acknowledge that what is actually happening is an organisation is being forced to pay compensation for its fault. It is not about offering something for nothing. The defendant will have either admitted or have been found by a court to have acted unreasonably in breach of a duty they had towards the claimant and have been responsible for injuries suffered. If an individual in question was in some way to blame for their injuries – if they should have been paying more attention or had not followed their training or simply acted contrary to basic common sense, then this is contributory negligence and will be reflected in an adjustment to the compensation figure.
Too often the politicians and media will describe the level of compensation as excessive or even some form of madness, but they will never explain to you what the breakdown of general and special damages were and indeed that is not fully explained by the courts themselves, but it is based on a scientific process not as politicians and journalists adjudge to be some form of lottery.
One case that was often quoted was from an American story of a driver who put his vehicle into cruise control and then turned away to reach for a cup of coffee. He is reputed to have been paid millions in compensation when he sued the manufacturer because he thought cruise control meant the vehicle was self-driving. It doesn’t exist. The case has been decisively debunked as a 1980s urban myth. Another story that is partially true is of a woman who sued McDonald’s over hot coffee that she spilt while driving and then received huge compensation. Actually, she was not driving, she was a passenger, and she opened her McDonald’s coffee not knowing that it had been heated to nearly 90°C. It spilled soaking through her trousers, causing third-degree burns. She was hospitalised for eight days, underwent skin grafts, was partially disabled for two years and scarred permanently. She didn’t initially sue. She just asked McDonald’s to cover medical costs and loss of earnings for her daughter. McDonalds only offered $500 and then she instructed a lawyer. At trial it emerged that McDonald’s had known that the temperature at which it served as coffee was dangerous as there had been 700 similar complaints over the previous decade. McDonald’s had done nothing to address this and admitted that its coffee as served was not fit for consumption and therefore it was in breach of a statutory duty by selling a defective product. (Interestingly a similar group claim was issued in England against McDonald’s by 36 claimants in 2002. It failed under England’s consumer protection laws. McDonald’s was held not to have sold a defective product nor had been negligent in how it packed and served its hot coffee which was labelled as such.)
The mythology that has built up around health and safety, which for many people seems to be a set of dirty words, is remarkable. Actually, health and safety legislation has worked as fewer accidents are now reported and indeed the number of new personal injury claims issued has fallen significantly in recent years. While it’s true that the NHS did pay over £2 billion in compensation, the number of clinical negligence claims against the NHS remained broadly flat but there has been a change in the way in which long-term payments are calculated. In London a Liberal Democratic councillor said that “we are living in a compensation culture gone mad” after limited details of personal injury compensation payments made by Transport For London (TFL) for incidents on the Underground were published. While nearly £5 million had been paid over three years, TFL stated that this represented one claim for every 2,298,850 journeys.
There is little evidence supporting these media stories. Indeed the data itself is limited. The then Justice Secretary Liz Truss claimed that “our compensation culture is rampant” and the government said “we are the whiplash capital of Europe.” Actually, when an in-depth academic study was conducted this was very far from true. Based on data collected from 10 European countries any of Italy, Germany or Switzerland could be described as the whiplash capital of Europe. Italy has nearly 50% more whiplash claims, in Switzerland they cost 10 times as much, and in general costs are higher in Italy, Germany, France and Spain than in the UK.
It isn’t just the media and the politicians exploiting this. The Secret Barrister believes that in such stories just as fictional detectives say, “follow the money,” who is really benefiting from all this mythology. It isn’t really those who are victims of crime. Indeed, since changes to the Criminal Injuries Compensation Scheme were made in 2012 the number of people receiving compensation for injuries caused by criminal acts has fallen by 60%. The real beneficiaries are the insurance companies who by telling us through planting stories in the media that the risks are higher than they really are, can then charge more for their insurance. My own insurance company is seeking a 98% increase in my House and Contents insurance this year and similar stories can be found in other forms of insurance like motor insurance. Shop around. The true meaning of compensation is that it is not a lottery win to be coveted, but the next best thing our society can offer to try to put things right.
[ii] Fake Law
The Secret Barrister Picador 2020