4th September 2019

My attention has been drawn to an article in the Guardian newspaper about “compensation culture”.

It is a great pity prejudicial drivel like this should appear in a respected newspaper.

It is quite difficult in a short blog to identify each and every problem with this poorly-written ill-thought out piece but here are some of the issues: –

  1. The journalist seems to have cobbled together this farrago of nonsense partly on the basis of some conversations he has had with some unidentified people in Ireland – a completely separate legal jurisdiction of course so what does anything in the piece have to do with the UK anyway?
  1. I can assure any reader that you are not going to get €60,000 or £60,000 for getting hit by a rugby ball when you are spectating at a game in the UK. I do not have any expertise in Irish law – unlike (presumably) the journalist who wrote this piece – but I would be astounded if any claim for that amount of money for that reason would be likely to succeed in Ireland either. A fairly basic point is that a claim is just that – a claim; it is not a payout –you can claim whatever you like – doesn’t mean you get what you claim for does it?
  1. Why would anyone “…think claims and compensation culture in UK is out of control…”. This is an old trope. It is well out of date. The Ministry of Justice here in the UK published relevant figures for the UK (not for Ireland) in December of 2018 and these show that in the July to September period of 2018 the drop in personal injury claims issued at court year on year was 20% -yes a fifth. And that is no blip by the way –for several years now such claims have been going down down down in number and anyone who wants to write a national newspaper article on this subject ought to be aware of that basic fact – the stats are very easy to obtain.
  1. Does he not know about the fact that legal costs in both large value and small value personal injury compensation claims are more strictly controlled nowadays than they ever have been? We solicitors have to go to case cost management court hearings to ensure a tight rein is kept on costs in large value cases – I have been at one this very morning actually. In smaller cases you get set costs – and they can be pretty small potatoes I can assure you.
  1. Does he not know that as from April 2020 that any “soft-tissue” injury (known as “whiplash” by most people – the word the journalist uses in his piece) resulting from a car accident will fall to be dealt with in the Small Claims Court if it is worth less than £5,000? Which means that legal costs will not be payable which in turn means that there will be far fewer such claims since people acting on their own behalf without lawyers are far less likely to pursue their rights. If there ever had been an “epidemic” (as is stated in the piece) of whiplash claims then firstly it is an epidemic which has decreased very greatly in recent years due to the drop in the number of claims in general as I describe above. And secondly as from April 2020 there will be the further drastic reductions in numbers to which I also refer above.
  1. As to bouncy castles – I wonder what the journalist who wrote this article thinks about Harris v. Perry (2008) EWCA Civ 907? Well – this case has the advantage of being an English case decided in the Court of Appeal in England and what it says is this (paraphrased): “you cannot rule out all risks to children when they use a bouncy castle or indeed in many other contexts”.  Following another case called R v. Porter – also decided in the English Court of Appeal – the Judges in the Harris case noted that in this earlier case of Porter nobody suggested that children have to be constantly supervised when they go downstairs. In just the same way in the Harris case the Court of Appeal said that where children are playing together on a bouncy castle and are not constantly supervised that does not create unacceptable risk; there is no requirement for such supervision.  The injury in the Harris case was very serious indeed and it involved two children of completely different sizes playing together. (As it happens my own view is that the Court of Appeal got this decision wrong – if kids are not supervised on bouncy castles then the scope for serious injury is pretty obvious especially if one kid is big and another one is very small).  But that is not the point – the point is that there is no cascade of bouncy castle operators getting sued for kids getting injured – it just does not happen. And there is absolutely no indication that it is anywhere near being about to start happening.
  1. PPI claims – what has this got to do with the price of eggs in the context of an article which appears to have been conceived as a critique of the personal injury claims compensation system (in Ireland)?  There is ample robust statistical data available about how many of these PPI claims actually succeed.  If there is a deluge of false claims there might be some cause for concern. But where is the evidence for that? Why does the journalist cite his own experience of starting and then ending a PPI claim? I am baffled as to what point it might be that he is trying to make.

We are used to reading nonsense like this in some of the tabloid newspapers – but the Guardian…?  It is really poor. For some people the phrase “compensation culture” is like a sort of conversational comfort blanket. An easy thing to talk about when you get fed up talking about the weather or run out of other ideas to have a chat about. We can all agree that claims are going up all the time for personal injury compensation and that the legal costs of same are outrageous –fat cat ambulance chasing lawyers/dishonest claimants/“you cannot do anything these days because you might get sued” etc. etc. etc. Many have heard or participated in such conversations. But I expect a bit more than this sort of thing from the Guardian.

I note at the end of the article the following: “this article contains affiliate links, which means we may earn a small commission if a reader clicks through and makes a purchase”. I didn’t click through personally – I caused myself enough potential blood pressure problems just reading to the end of the article.

Blog by Adrian Dalton, Partner