Tort - Claiming compensation PDF

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Tort - Claiming compensation lecture notes and seminar work...

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TORT LAW IN ACTION (1): CLAIMING COMPENSATION AND THE SO-CALLED ‘COMPENSATION CULTURE’ WEEKS 5 AND 6

LEARNING OUTCOMES ● To understand how tort in practice differs from both the formal law of tort and the impression of tort law conveyed in many tort textbooks; ● To gain general knowledge of the number and profile of personal injury claims pursued; ● To understand the institutional and personal factors that can affect both levels of claiming and the types of personal injury claims pursued; ● To understand and evaluate the suggestion that a damaging ‘compensation culture’ has arisen in recent years.

READING ● Cane and Goudkamp, chapter 8 (Claims and Claimants) ● A Morris, ‘Tort and Neoliberalism’ in K Barker et al, Private Law in the 21st Century (Hart, 2017), 503-526. (A scanned copy is available under ‘Learning Materials/Tutorial Materials/Tutorial Materials – Scanned Readings’ in Learning Central) ● R Lewis, ‘Structural Factors Affecting the Number and Cost of Personal Injury Claims in the Tort System’ in E Quill and R Friel, Damages and the Compensation Culture: Comparative Perspectives (Hart, 2016), 37-59. (A scanned copy is available under ‘Learning Materials/Tutorial Materials/Tutorial Materials – Scanned Readings’ in Learning Central) ● Extract from A Morris, ‘Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury’ (2007) 70 Modern Law Review 349. (A scanned copy is available under ‘Learning Materials/Tutorial Materials/Tutorial Materials – Scanned Readings’ in Learning Central)

● Please also refer to your lecture notes.

QUESTIONS 1. How and why do we decide to claim compensation for personal injury? Explain with reference to Felstiner et al’s theory on naming, blaming and claiming. ● ● ● ●

Just because (tort) law ‘exists’… does not automatically mean that injured people will use it to claim the compensation to which they are legally entitled Textbooks imply that tort provides a universal system of justice But tort law in action is much more complex Our propensity to claim is affected by a wide range of factors

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Felstiner et al, ‘The Emergence and Transformation of Disputes’ (1981) 15 Law and Society Review 631: ○ Claims are constructed through a process of naming, blaming and claiming ○ Individual transforms an unperceived injurious experience into a perceived injurious experience (names) ○ Attributes that injurious experience to the fault of another individual or entity (blames) ○ Voices that grievance to the person or entity believed to be responsible (claims)

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So some people may name but not blame or blame but not claim A useful framework but not necessarily a sequence ○ Kritzer, ‘Propensity to Sue in England and the United States of America’ (1991) 18 Journal of Law and Society 400: name…blame…claim ○ Lloyd-Bostock, ‘Fault and Liability for Accidents: the Accident Victim’s Perspective’ in Harris et al : availability of claim (i.e. compensation) encourages us to name and blame

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Clear that to transform injuries into claims, people must be ○ ABLE to do so; and ○ WILLING to do so

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Certain factors can affect our ability and willingness to claim ○ Cultural ○ Personal ○ Institutional

2. According to the Pearson Commission, how many personal injury claims were there in 1973? How does this compare with the number of claims pursued now? 1973 → 250,000 claims

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Long-term increase in the number of claims: we are more likely to claim today than forty years ago But also need to examine trends in relation to different types of claims

3. What was the proportion of claims pursued in the areas outlined below in 1973 and in the most recent figures?

Type of Claim

1973

Road traffic accidents

41%

77%

Employers’ liability

47%

10%

Public Liability

11%

11%

3%

2%

a Clinical Negligence

Recent figures - 18/19

What is the typical injury? Need to link- from first semester! RTAs as proportion of all injury claims 1973 = 41% → 2001 = 54% → 2019 = 77% Proportion of RTA claims involving ● ‘whiplash’ = 58%

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‘whiplash’ + ‘neck injury’ = 87%

Minor injury ● No claim for social security benefit ● Little claim for financial loss ● Often claim is only for non-financial loss = 66% of all damages Result = great majority of cases settle below £5,000

Health and safety at work act 1974 4. What percentage of all accident victims obtain tort damages? 6.5%

5. What factors can affect whether we choose to claim or not? Why is context so important? Atiyah on insurance: Wrong to think of tort system as being in practice a fault system. It is really a fault-cum-insurance system. Chances of obtaining damages depend on the availability of insurance (or deep pockets) as much as on the existence of fault. This feeds into our propensity to claim and patterns of claiming. Procedures for handling claims ◦Miller and Sarat (1981): highly institutionalised remedy systems that are well known and readily available generally lead to higher rates of claiming ◦Why? Legitimise claiming Increase perceived utility of claiming Factors Cultural → norms and expectations about when it is acceptable to claim: hard to measure Personal → legal awareness and claims consciousness - concerns about claiming ● Awareness that can claim ● Awareness of how to claim ● Cost of claiming ● Involvement in legal process ● Impact on relationships Institutional factors ● Existence of liability insurance (or deep-pockets) ● Alternative sources of support, such as welfare

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Support structures in place to support claiming (e.g. access to advice and funding mechanisms) Procedures for processing claims Alternative sources of support ○ Welfare state: NHS and social security ○ Think about the difference between the US and the UK ○ Kagan, Adversarial Legalism: The American Way (2000): Americans seek support through tort for the consequences of injury which those in Western Europe receive directly from the state Structures in place to support claiming ○ Availability of legal advice and support to encourage naming, blaming and claiming Cost rules and funding mechanisms available to support claiming ○ Are injured claimants able to pay for/fund their claims? ○ Who will pay the legal costs if the claim fails? Loser pays rule v. each side pays their own costs…

6. With reference to the factors discussed above: a. Why has the overall number of claims increased since the 1970s? ● ● ● ● ● ●

more structures in place to encourage claiming atiyah: ‘a damages lottery’ it looks as though it is claimant friendly stretching or tort law encourages claiming morris & lewis → read articles Harris: 19% stress for not claiming now less intimidating

b. How can we explain the different rates of claiming in each area? For example, why are there so few clinical negligence claims as compared with road traffic accident claims? ●

Morris: some claims are more important than other. why? easier to process RTA claims. high rate of success, low risk

c. Why are there so few claims arising from accidents in the home or from disease? ●

insurance: not the same pressure. difficulties proving fault in a large number of home insurance companies

7. What is meant by the term ‘compensation culture’? What concerns are people referring to when they use the term?

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Generally seen as an americanisation where we are claiming for everything and anything we can, whether it is necessary or not. Worrying increases in weak, fraudulent and trivial claims. are they trying to recover too much money for trivial injury? eg whiplash claims, yes as it now constituting 70% of all claims going through. Range of meanings including ○ Increased burden on society from the rising cost of personal injury litigation Rising costs caused by increasing ○ Total number of claims ○ Individual cost of each claim

Concern about compensation culture ● Very extensive press coverage ○ often exaggerated & misleading examples ● Series of official reports ○ finding perception of the problem was greater than the actual problem in reality ○ but steep rise in motor claims & whiplash since 2006 ● Considerable lobbying ○ especially effective by insurers during the coalition

8. What are the arguments for and against the idea that a damaging compensation culture has developed? Why is there much disagreement about whether there is a problem with claiming?

9. Why might governments since 2010 have been keen to conclude that the compensation culture exists? labour supports tort system but they did set up a better regulation task force, found conservative:...