The Compensation Culture

by Daniel Menell

It was not until the late 1980’s that solicitors were permitted to advertise their services. And I mean no advertising. Not even the smallest of ads in the services section of the local newspaper. It follows therefore, that the public were far less informed and less aware of solicitors, how they worked, even that they might be able to make a personal injury compensation claim at all. People may have needed a solicitor when buying a house, when Auntie Maud died, or when they found themselves accused of being on the wrong side of the law but generally speaking, the public had little to do with solicitors, and this created something of an air of mystique and made the entire profession seem somehow distant.

If you needed a solicitor to claim compensation following an accident, you’d typically walk in to your local high street solicitors to see if someone could help. And they usually could. If you had what appeared to be an arguable case, chances are you’d get Legal Aid. And under the scheme your solicitor could act for you safe in the knowledge that if they won the case, they’d be paid by the defendant, and if they lost the case they’d be paid, albeit a lesser sum, by the Legal Aid Board. It was pretty much accepted without a second thought that your local solicitor was the person to help with a compensation claim..

The abolition of Legal Aid for personal injury cases took effect in 2000, despite strenuous opposition from the legal profession and consumer groups. People were left having to find a solicitor to take personal injury cases on a "no win no fee" basis, and there were fears that this may undermine the entire justice system. Why after all, would a solicitor take on a borderline case for which they may not get paid? It put in jeopardy the ability of victims of accidents to pursue their case if the prospects of success were not deemed sufficiently great to justify the solicitor taking the financial risk. In other words, justice, almost overnight, suddenly became inaccessible to a huge number of accident victims who, under the Legal Aid system, might have gone on to win their personal injury compensation cases.

Accusations often levelled against the legal profession are that it responds slowly and resists change. However, a number of factors conspired to force the profession to change drastically and rapidly, in the field of personal injury practice; the relaxation of the rules of advertising, the abolition of Legal Aid and its replacement with no win no fee, and the growing use of the internet as a resource for the public. These factors brought the law to the public in an unprecedented way, and the perception now, is that there exists a "litigation culture" which by and large is seen as a bad thing.

But what exactly is the "Litigation Culture"? There now exists a widespread perception that people today will claim for anything, and that I suspect is at the root of the so called litigation culture. However, the law today, in terms of what type of personal injury claims are genuine and should be dealt with, and which are spurious and should be thrown out, is largely the same as it was a decade ago. Although awards for personal injury in the UK are too low (according to everyone except insurers), thankfully the U.K. has not followed the American model, which saw liability awards soar in the early 1980’s. Seemingly bizarre and spurious claims seem to regularly make headlines. The USA has turned in to a quasi nanny state, with consumer warnings which in the UK would be laughable. Yet there is little evidence that these warnings have had any significant impact on the number of accidents. One often cited example is a metal extension ladder which at last count carried no fewer than 37 warnings and instructions. Do we really need stickers on new cars warning us that touching a hot exhaust may be dangerous? Let us pause momentarily to savour the insanity of a true litigation culture by considering the following warnings found on various products in the USA.

  • "Caution: The contents of this bottle should not be fed to fish." - On a bottle of shampoo for dogs.
  • "Do not use while sleeping." - On a hair dryer.
  • "Shin pads cannot protect any part of the body they do not cover." - On a pair of shin pads made for cyclists.
  • "This product is not intended for use as a dental drill." - On an electric rotary tool.
  • "Eating rocks may lead to broken teeth." - On a novelty rock garden set.
  • "Do not use orally." - On a toilet bowl cleaning brush.
  • "Caution: Remove infant before folding for storage." - On a pram.
  • "Wearing of this garment does not enable you to fly." - On a child sized Superman costume.
  • "Twist top off with hands. Throw top away. Do not put top in mouth." - On the label of a bottled drink.

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