Litigation nation

People should get what they deserve. It is an idea as old as Socrates. We don’t begrudge the lottery winner his good luck, but become agitated at a bonus payment for the director of a financial services organisation that is performing poorly for its shareholders. The former has been picked out by the gods in an equal game of chance; the latter seems to have been rewarded for failure. Some criminals deserve to be in jail where their punishment is deprivation of liberty, but they do not deserve to be stripped of their humanity, which is the key to the ongoing slopping out debate. There is increasing ambivalence about accident victims claiming compensation through the courts. Hardly a week goes past without an article about a “Compensation Culture”, a free lunch for the workshy, the fraudulent and the plain undeserving. Some media present us with a picture of a legal system as a kind of benign cash dispensing machine, run by judicial Santas too credulous and out of touch to see that they are being taken for a ride.

In fact there is no evidence that the system is rewarding the wrong people at the wrong rate. But then as a personal injury lawyer I would say that, wouldn’t I? And I do, on the frequent occasions that the mention of my trade provokes a tirade about duplicitous claimants and unscrupulous lawyers. A new urban mythology has evolved, which has various articles of faith as follows.

1. The blame culture

This is shorthand for a nanny state where no-one takes responsibility for their own actions, and where there is no such thing as an accident. Well, most injuries are caused by someone or another, either doing what they shouldn’t have done, or failing to do what they should have done. The Royal Society for the Prevention of Accidents estimates that 95% of road accidents are caused by driver error. If you are struck by lightning on a golf course that is an accident. If you are hit by falling scaffolding on a construction site, someone has blundered. It is an accident only in the sense the event is unintended.

The injury might well be your own fault. In another tabloid recently a columnist stated: “It is clearly crazy that anyone who spills a cup of tea on themselves should instantly feel that the restaurateur is obliged to compensate them for serving hot liquid.”

Whatever she has been reading it is not the law reports. There is no court in the UK which will award you damages for that kind of incident or anything else that you cause yourself. The courts have developed quite sophisticated ways of looking at blameworthiness and comparative negligence and will frequently apportion damages. But if you run into the back of a van, even if you are catastrophically injured, you will get what you deserve – which is nothing.

2. The litigation explosion

Suing is the new shopping. The impression is that the courts are groaning under the weight of personal injury claims, particularly the trivial and frivolous, all funded by legal aid. We read of communities in sue-thy-neighbour meltdown, with every minor slight or grievance turning into a court action. In fact, throughout the UK court actions of all kinds are down. In Scotland the figures for actions raised in 1992 were 166,000, which reduced to 115,000 by 2002. Out of these cases there was a total of around 4,000 personal injury cases raised in the whole of Scotland, meaning around 0.1% of the population had pursued an action. Civil legal aid applications are subject to stringent quality control tests, and grants of civil legal aid have fallen over the last decade. The latest figures showed a total of personal injury grants of around 1,500.

The natural forum for the bad hair day type of claim is the small claims court, where hardly any personal injury actions are raised at all. Those that are, are generally doomed to fail, as institutional defenders, such as insurers hire expensive legal counsel to muscle out the unrepresented claimant. This is hardly a system in crisis or a societal breakdown of trust.

3. We have a US-style compensation culture

If you believe all you read, life in the USA is a continuing series of litigation opportunities. If you were really likely to become a dollar millionaire for the shock and trauma of seeing Janet Jackson’s left breast, or the distress caused by a too vigorous handshake at the PTA meeting, poverty could be solved at a stroke. The vast majority of the atrocity stories about ludicrous plaintiff awards are apocryphal. The resilience of such stories is in no small way connected to the desire of corporate America not to be accountable for its actions to a civil jury system, and an anxiety to provide that protection under the guise of “tort reform”. Critics of the US system should remember that in the global marketplace we are the direct beneficiaries of their product liability regime.

Recently the British Medical Devices Agency banned the use of the St Jude Silzone silver coated heart valve. Many users of the valve have had their devices removed because of fears over safety. Some have died. Lawyers have found a St Jude company marketing memo which states:

“It looks like a pretty slick idea, and we are looking for our first implants in the guinea pig continent of Europe.”

A class action against the manufacturers has been raised… in the US.

People who complain of the adverse effects of Seroxat, an anti-depressant manufactured by Smith Kline Beecham have raised proceedings… in the US.

Greenock workers at National Semiconductors who complain that workplace practices have caused them to contract cancers are part of a class action… in the US.

The simple fact is that neither the UK courts nor the UK claimants’ firms have the stamina, experience or resources to deal with this kind of claim.

4. The courts are giving out pools wins

Last winter schoolteacher Aileen Gilmour was awarded £55,000 after what was widely reported as a slip on a chip at school. One Scottish tabloid columnist was so exercised by this that she contemplated taking a tumble off her high heels in the hope of such a windfall. Those reading behind the headlines quickly discovered that the accident happened on a dangerously sloping ramp, where other pupils and teachers had already slipped, where there was no kind of litter patrol and no health and safety culture of any kind. Mrs Gilmour suffered a serious knee injury involving a lengthy absence from work, to the extent that £33,000 of her damages award consisted of lost wages. She is not alone in suffering injury at a school. In the past six years, five teachers have died and over 3,000 have been injured, mainly in falls. The Health and Safety Executive has launched a special initiative to reduce injuries at places of education. Aileen Gilmour was not getting a bonus but was simply being restored to the position she would have been in had the accident not happened.

There is a widespread misconception about the level of awards. Scottish awards of damages for pain and suffering are modest to the point of miserable. Generally there is reference to a tariff known as the Judicial Studies Board Guidelines. By way of example the recommended award for complete loss of the sight of both eyes is £125,000, an amount most people would regard as derisory. If you read of a big award in the papers you can guarantee that a substantial amount will be made up of either years of lost wages or a lifetime calculation of nursing care costs.

5. Compensation is making you fat

This from the svelte Charles Clarke, Secretary of State for Education who cites fear of litigation as a factor in the reduction of organised sporting activities. He proposes that parents should only be able to sue if the organisation has breached existing health and safety guidelines and advice. He does not seem to know that at present there is virtually no prospect of success in any court action unless the claimant can prove exactly that.

Take the tragic case of Simon Chittock, a young man, now wheelchair bound, who suffered catastrophic injury when skiing off-piste on a school trip. He had already broken the rules once on the trip and it was argued that he should have been grounded completely to protect him from himself. The Court of Appeal held that the teacher’s actions in giving him a severe warning and taking his parole for good behaviour could not be criticised. It was within the range of reasonable responses of a conscientious teacher and liability would only arise on a response outwith that range. Negligence could only be considered against the context of available guidance for the activity. His action was dismissed. Similarly local authorities constantly portray themselves as under siege from spurious claims, fuelled by no-win no-fee solicitors. Lawyers are unlikely to act without payment, unless there are good prospects. The great majority of local authority claims arise from their roads and pavement responsibilities and their generally appalling condition. For many of us the evidence of our own eyes is enough to convince that the problem does not lie with the victim or his lawyer. This partly relates to the ceaseless activities of cable companies and utilities who dig up the pavements. On a recent radio programme, a representative from Glasgow City Council Roads Department stated that the results of an internal survey showed that 6 out 10 of these interventions were not properly reinstated and were affected by subsidence. Not that the courts are enforcing garden lawn standards. To succeed in a pavement tripping case you must be able to show a discrete tripping hazard of at least 20mm and also prove how long it had been there so that a reasonable inspection system would have revealed it, giving time for repair. These are insuperable hazards for most litigants. The last time the Accounts Commission looked at the issue in their publication “A Costly Trip”, it was stated that 60% of these claims were repudiated, and of the remainder only 3% resulted in a court action.

The government-sponsored Better Regulation Task Force recently spoke of the urban myth of the compensation culture and highlighted the real difficulties put in the way of genuine claimants. Why is that not the way it seems? Discredited (and now defunct) claims companies such as Claims Direct or The Accident Group marketed accidents and injuries as no-fault commodities and set up completely unrealistic expectations. Reports frequently fail to differentiate between a claim (which anyone can make) and a successful court action where a judge has come to a decision on the evidence and the law. Public outrage greeted the announcement that burglar Brendan Fearon was claiming £100,000 in damages from farmer Tony Martin, over the shooting which killed his accomplice 16 year old Fred Barras. Hardly anyone reported that the action was thrown out before it could even begin. There have been reports about obesity claims against McDonalds and alcoholism claims against Scottish and Newcastle, but they are not coming soon to a court near you. What remains is the noise and the crackle and a public perception of the undeserving getting something for nothing. That is not to say that in a judicial system run by human beings making difficult judgment calls there will not be decisions which seem wrong, and occasionally bizarre. When this happens take a lawyer’s advice, calm down and read the small print.

Ronnie Conway is a partner in Bonnar & Co, Airdrie, and a member of the Law Society of Scotland’s Civil Procedure Committee