Issues on Compensation Culture in British Courts - Assignment Example

Law Question Discuss the extent to which ‘compensation culture’ exists in Britain It is widely believed that in the UK Context, ‘compensation culture’ is a myth and does not really exist. However, there are also instances during which compensation culture is seen as a “growing crisis” 1 Thus it is genuinely needed to provide restitution to the aggrieved party whose material losses may have been caused by the wilful negligence or conduct of the defendant. One the one hand, although it is incumbent for the courts to provide justice to the aggrieved and retribution to the wrongdoers, on the other, it is always necessary that courts take cognizance of the fact that all injuries really do not give rise to compensation. There are many aspects that give rise to genuine and sanguine compensation claims, chief among which are the surrounding characteristics of the occurrences of tort, the conduct of the parties involved and the kind of material and calculable damages or losses that gave rise to a claim for compensation. Courts cannot and should not provide compensation at the drop of a feather, while at the same time reject genuine claims for compensation for material damages that arouse due to negligence or malice of the defendant. The demarcating line between genuine compensation claims that need to be compensated as pitted against false claims registered and pursued under fraudulent and malicious practices, with just the overpowering motive to make quick money, may be blur, but courts need to seek out truth and justice against all odds and by making the greatest possible efforts to dispense justice. Just as it is incumbent that offenders need to be booked and punished, it is also necessary for the due process of law to believe that aggrieved parties need to be fully protected and recompensated for harm done to them. Although this is a difficult task, it needs to be achieved without demur. Coming to the aspects of compensation culture, it is believed that The Compensatory Recovery Unit is one such unit wherein all claims for personal injuries are recorded, irrespective of the fact whether they have been judged or settled. Over time it is evidenced that employer liability, clinical negligence, tort cases for negligence or lowered standard of care in hospitals settings, all these have lowered over the years in the UK context. Thus, there are several grounds to believe that indeed the compensation culture does seem to have lowered in recent years and “that in recent years accident claims, far from rising have remained static and indeed last year fell by 9.5%.” 2 This could be especially attributed to the constant fear among health care practitioners, nursing faculty and other responsible members of the administration regarding the heightened aura of medico-legal implications and the fact that they could be defendants in health care law suits if they do not take good care of the patients or compromise regarding any aspect of health care that is to be afforded to patients. Under such circumstances, while on one hand there could be almost a fear psychosis among health care personnel, this could also adversely affect their morale and make them desist from adopting desirable levels of service, for fear of legal reprisals and other detriments. Thus, under such circumstances, the health care community would only restrict itself to the routine health care practices that need to be enforced, to avoid any medico-legal risks and thus, imposing liability of various kinds could, in effect, render adverse public interests, and also discourage desirable; activities from taking place. “The provisions on negligence and breach of statutory duty make clear that courts considering what standard of care are reasonable in a claim for negligence or breach of statutory duty can take into account whether requiring particular steps to be taken to meet the standard of care would prevent or impede a desirable activity from taking place.” 3 Perhaps one of the most talked about case regarding negligence, a cause for compensation is seen in the landmark case of Tomlinson v Congleton Borough Council [2003] UKHL 47, [ 2004 ] 1 AC 46) wherein a young man, in his right senses jumped from a height and tried to execute a dive into the shallow water, thereby breaking his neck in the process. Rendered a paraplegic, he sued the Council authorities for not providing proper warning against swimming in that portion of the waters. The Courts however held that in this instance no such warnings were necessary since the injuries caused to him was due to his own misconduct of attempting a dive and not while swimming in the waters. This was a case of self inflicted injury by the applicant. Bolam Test v. Bolitho Test: In the case of compensation culture, there could be various interpretations, given by different Courts, according to their subjective interpretation of relevant laws and its applications. Perhaps even cases which seem akin to one another may be interpreted and judged differently, according to the discretion of the presiding jury. In the Bolam case, the question of reasonable care in not inflicting injuries arising out of apparent negligence was discussed. “The Bolam test determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.” 4 The Bolam test, in other words, critically examines whether he defendant had applied the degree of professional care that was expected of him, where he fell short of it and how his apparent negligence would have possibly precipitated a health care detriment to the applicant, which has made it necessary for the courts to apply the Bolam Test. However, over time, the Bolam Test has made way for the Bolitho test, wherein medico-legal issues have been solved through application of the majority test, in that a health care professional would not be held responsible for professional negligence, if what s/he did, was duly accepted and confirmed by a majority of similar health care professionals, even if there existed opinions to the contrary. “This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is logically indefensible 5 Finally, to wind up the discussion on compensation culture it could be said that “Despite the excessive manner of these reports, it is arguable that the UK has not developed a compensation culture, and this has been acknowledged and fears allayed through legislative action, but businesses should continue to take steps to minimize their staff and customers’ exposure to potential torts.” 6 Question 2: Evaluate the approach of the courts in deciding whether the imposition of liability might be adverse to the public interest by preventing desirable activities from taking place Imposition of liability by courts could be adverse to public interests in two ways: 1. Providers of services would be circumspect and even reluctant to provide a higher or intensive level of service than what is contractually or contextually demanded from them for fear of its adverse consequences, despite best efforts to provide the degree of care. 2. Spectres of legal impairment and court actions would discourage or desist positive action that are urgently needed under the circumstances, thus leading to lowered degree of care and its consequence in the arenas of public health care, even fatal results caused by inaction of attending physicians or service providers. For instance, if a patient is in dire need of an open heart surgery, the attending medical team would consider whether the risks involved in saving the patient’s life would outweigh the benefits to be gained from it, in terms of extending his residual life. In 9 times out of 10, if the grave risks are heavier, the specialists would either defer the intervention or seek other interventionist programmes to abate the situation. Again considering the case of a patient with Alzheimer’s disease, doctors would need to decide whether changes in drug administration would ameliorate his condition or exacerbate it, a wrong choice could often lead to fatal results. Thus, health care professionals need to weigh the pros and cons of every kind of action, big or small before taken decisions regarding the health care and safety aspects of their patients. Perhaps one examples of liability has been the case of “Kent v Griffith & ors. [2000] ILR 9 Feb 3 February 2000” 7 In this case the issue arouse whether an ambulatory service owe a duty of care and responsibility to any member of public to answer their call, and if due to negligence it fails to attend within reasonable time. A similar situation arouse in the case of Watson v. British Boxing Board [2000] LTL C7200353 Case, which carried more explicit liability clauses in that that the Board had taken upon itself the commitment to have a medical team in attendance during the matches which apparently, in this bout, it failed to do. In this case, it was not a duty to the public in general, but to the fighting boxers in particular that the duty was due. “It made provision in its Rules for the medical precautions to be employed and made compliance with these Rules mandatory” 8 Compensation demands for accidents at work may be justifiable. UK has a high accident rate at work place and “many more workers have suffered serious injury as well as industrial related illnesses.” 9 Finally, it could be reasoned out that not all interests could seek protection under the law of torts or seek recompense for self sustained injuries or for losses that occurred out of wilful or contributory negligence. Courts need to exercise discretion on their legal views and deliberations on different aspects of the case as presented by both the applicants and defendants and need to dispense justice on sound and rational basis, seeking to place the aggrieved person back on the pedestal where he stood before the occurrence of the subject matter of litigation and to punish the offender in a manner commensurating with the nature and intensity of the crime. Besides, it is also seen that “small claims court awards to be raised from £1,500 to £5,000, arguing 70pc of compensation claims are up to this value.” 10 Annotated Bibliography Accident at work claim, www.how-to-claim-compensation.co.uk, 2009, retrieved 2 April 2010, . Government responses to the Compensation Culture: In this article, an excellent look at the compensation culture is done for the benefit of readers. The various aspects of this culture including the need to seek out the root causes for accidents and injuries have been emphasised. By adopting a balance outlook to this vexed issue, the site offers solutions on how compensation could be reduced in later years for common good of the citizens and the UK Government. The responsibility of statistical bodies, media and agencies in providing the right kind of information that could provide solutions rather than hype has also been positively dealt with. Law society tackles perception of compensation culture, The law society, 2005, retrieved 2 April 2010, . In this article , the Law Society offers their views and perspectives on the issue of compensation culture. According to them, the feeling that UK has a major compensation culture is erroneously based and misleading and as a matter of fact the compensation levels are shrinking in recent years. The law society also believes that due care and attention needs to be provided to genuine compensation cases in order to benefit actual losses and yet be aware of the deceit that could occur due to false claims. Compensation act 2006, dca, 2006, retrieved 2 April 2010, . This article offers a detailed analysis on the need and justification of claims under the Compensation Act. This article has been split into two parts, the first dealing with law of negligence and violation of statutory duty and on damages for mesothelioma, while the second deals with the ways and means by which approved management agencies could possibly offer specialised services in matter dealing with compensation. Icd-9 health information, Free CSS templates, n.d., retrieved 2 April 2010, . This site considers the impact of the Bolam case and its ramifications in terms of how it could be a landmark case for succeeding kinds of cases of the same genre. Aspects impacting this case like the degree of standard care that need to be established, whether the concerned defendant had taken this care, and if not whether the deficiency in service had been a precipitating cause for the injury or loss. Citing various case instance that bear affinity to the Bolam Test, the underlying legal theories of this case has been re established. IV tortious liability, 13-marson-chap 13.indd, 2008, retrieved 2 April 2010, . This article considers the salient aspects of UK Tort laws and nuisance tenets and how these could be applied in various situations and serve different kinds of tort offenses. There are three essential elements in as far as torts of negligence and nuisance is concerned. Duty of care, violation of due care and its resultant damages. The Courts are duty bound to take these elements into account and pass their verdicts based on material facts and the surroundings of the case. Court of appeal: Kent v Griffiths & ORS [2000] ILR 9 Feb, 2000, retrieved 2 April 2010, . This article produces the full details of what transpired during this case and offers not only the arguments and counterarguments produced by both parties but also the verdict and the justification provided by the jury after providing the verdict. The full proccedings of this case is provided for the benefit of readers. Court of appeal: Watson v British board of boxing control [2000] LTL C7200353, 2000, retrieved 2 April 2010, . This site details the proceedings in the Court of Appeal during the Watson v British Board of Boxing Control [2000] LTL C7200353 on 19 December 2000. While carefully considering the arguments of both the applicant and the defendants in their speeches, the Court felt that a deficiency of health care services was evident from the Board’s side, in that they could provide him with early medical treatment at the Boxing ring itself, which, if carried out instantaneously would have not rendered him so badly affected as he ultimately became. The Court felt it necessary to squash the appeal of the BBBC and offered full damages to the applicant. Accident at work claim, www.how-to-claim-compensation.co.uk, 2009, retrieved 2 April 2010, . This article considers the threats and challenges of physical injuries at the workplace and seeking ways and means by which these could be reduced or compensated. There are serious healthcare and accident challenges, especially in construction industry and this article offers ways and means by which these could be less threatening and even productive for the employees and workmen. Essen, Y, Insurers want people to say sorry with flowers not lawyers, Telegraph.co.uk, 2004, retrieved 2 April 2010, . This article argues that people should have direct negotiations with insurance companies rather than lawyer for settlement of their injury claims. Besides, the pattern of compensation needs to be modernized to suit current demands and also reforms in this area could make small claims court awards to be raised from £1,500 to £5,000, since nearly 70% of compensation claims are in this bracket. Bibliography IV tortious liability, 13-marson-chap 13.indd, 2008, retrieved 2 April 2010, . Accident at work claim, www.how-to-claim-compensation.co.uk, 2009, retrieved 2 April 2010, . Compensation act 2006, dca, 2006, retrieved 2 April 2010, . Court of appeal: Kent v Griffiths & ORS [2000] ILR 9 Feb, 2000, retrieved 2 April 2010, . Court of appeal: Watson v British board of boxing control [2000] LTL C7200353, 2000, retrieved 2 April 2010, . Essen, Y, Insurers want people to say sorry with flowers not lawyers, Telegraph.co.uk, 2004, retrieved 2 April 2010, . Government responses to the compensation culture, Compensaton culture, 2010, retrieved 2 April 2010, . Icd-9 health information, Free CSS templates, n.d., retrieved 2 April 2010, . Law society tackles perception of compensation culture, The law society, 2005, retrieved 2 April 2010, . Read More