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Effects of the political climate
Much of the law relating to damages (particularly that relating to law reform, costs, whiplash etc.) has been in a state of flux with the political situation that has occurred over the last couple of years. For example, though it looked – before the General Election in 2017 – likely that the government was about to do something to ‘address’ the ‘problem’ of whiplash claims, this seems to have been on the back-burner more recently.
However, see these links below for some of the story:
Government response to whiplash consultation: ‘Reforming the soft tissue injury (whiplash) claims process’
https://consult.justice.gov.uk/digital-communications/reforming-soft-tissue-injury-claims/
Ministry of Justice announces decision on whiplash reform http://www.hilldickinson.com/insights/articles/ministry-justice-announces-decision-whiplash-reform
Whiplash and the small claims limits inquiry launched - http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-20151/personal-injury-whiplash-and-the-small-claims-limits-inquiry-launch-16-17/
Exclusive: PI reforms could make justice system “unworkable”, district judges tell government (3 February 2017)
http://www.legalfutures.co.uk/latest-news/pi-reforms-make-justice-system-unworkable-district-judges-tell-government
The former Lord Chancellor (Liz Truss) also caused some pre-election controversy when she altered the ‘discount rate’ used when calculating damages:
See these links:
Lord Chancellor announces change to the discount rate in a move which is generally beneficial for claimants (27 February 2017)
http://www.penningtons.co.uk/news-publications/latest-news/2017/lord-chancellor-announces-change-to-the-discount-rate-in-a-move-which-is-generally-beneficial-for-claimants/
NHS trust triples injury pay-out to £9.3m under controversial new rules (20 March 2017)
https://www.theguardian.com/business/2017/mar/20/nhs-trust-injury-payout-health-service-insurance-ogden-formula
Girl’s damages increase hugely in first settlement under new discount rate (21 March 2017)
http://www.litigationfutures.com/news/girls-damages-nearly-tripled-first-settlement-new-discount-rate
Defence union accuses Truss of legal error in setting new discount rate (20 March 2017)
http://www.litigationfutures.com/news/defence-union-accuses-truss-legal-error-setting-new-discount-rate
Calculating damages
Fatal Accidents Act 1976
http://www.legislation.gov.uk/ukpga/1976/30/contents
The Supreme Court has recently decided a case on the proper multiplier to be used to establish future losses in Fatal Accident cases: Knauer (Widower and Administrator of the Estate of Sally Ann Knaur) v Ministry of Justice [2016].
For comment on the case see Abigail Cohen, ‘Damages in Fatal Accidents Claims: Supreme Court decision as to proper basis for calculations of future loss’ http://www.hendersonchambers.co.uk/wp-content/uploads/2016/02/Damages-in-Fatal-Accidents-Claims-Alerter-by-Abigail-Cohen-25.02.16.pdf
See also: ‘A predictable revolution: Knauer v Ministry of Defence in the Supreme Court’
http://documents.lexology.com/0dd29a92-fe76-4391-a929-aea6c9230149.pdf
See also: ‘Supreme Court rewrites law on multipliers in fatal accident cases’
http://www.litigationfutures.com/news/supreme-court-rewrites-law-on-multipliers-in-fatal-accident-cases
In Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) the court found that whilst a failure by the Fatal Accidents Act 1979 to award bereavement damages to couples who live together, but are not married, does not directly engage Article 8 (right to family life and privacy), as a point of principle this distinction could not be justified and Parliament should consider reforming the law: See http://anthonygold.co.uk/latest/blog/high-court-calls-for-parliament-to-rethink-bereavement-damages-and-cohabiting-couples
See also: ‘High Court calls for change in bereavement law to benefit cohabitees’
https://ukhumanrightsblog.com/2016/09/21/high-court-calls-for-change-in-bereavement-law-to-benefit-cohabitees/
See also: ‘Fatal accidents and statutory categories of claimants’
https://blmpolicyblog.com/2016/09/19/fatal-accidents-and-statutory-categories-of-claimants/
Civil Liability (Contribution) Act 1978
Actuarial tables for use in personal injury and fatal accident cases (the Ogden tables) are prepared by a multi-disciplinary group of actuaries (including the Government Actuary), lawyers, accountants and insurers. The tables provide an aid for those assessing the lump sum appropriate as compensation for a continuing future pecuniary loss or consequential expense, such as care costs, in personal injury and fatal accident cases. The tables are prepared by the Government Actuary's Department and can be viewed via their website:
www.gad.gov.uk/services/other%20services/compensation_for_injury_and_death.html
If you've ever wondered about damages for loss of future earnings for someone such as a promising young professional footballer forced to leave the game at the start of his career, then you've probably asked the question 'how much would he get, then, exactly?' The answer, it seems, is £3,854,328. See Smith v Collett [2009] EWCA Civ 583:
www.bailii.org/ew/cases/EWCA/Civ/2009/583.html
Personal Injury Facts And Figures
From a site called ‘Videojug’, hear a lawyer discuss issues relating to damages claims for personal injury in tort (though take care as this is US-based)
www.videojug.com/interview/personal-injury-facts-and-figures-2
Damages – litigation as big business and high drama
www.youtube.com/watch?v=7sHRa1_PVAg
A promotional video of the first season of the US series 'Damages', described as follows:
"Set in New York's world of high stakes corporate litigation, Damages follows the lives of Patty Hewes (Close), one of the nation's most powerful and morally questionable litigators, and her bright, ambitious protégée, Ellen Parsons (Byrne), as they become embroiled in a class action lawsuit targeting Arthur Frobisher (Danson), one of the country's wealthiest CEOs. As Patty battles Frobisher and his attorney, Ellen witnesses just what it takes to win at all costs, as it quickly becomes clear that lives, as well as fortunes, may be at stake".
Compensation culture? (See also links for Chapter 1)
Harris Fowler: one example of a ‘you can claim’ TV advert from a specialist personal injury litigation firm
http://harrisfowler.co.uk/watch-our-tv-advert/
And one from the same firm aimed directly at those injured in the line of military duty: http://www.dailymail.co.uk/news/article-2312242/340million-compensation-culture-infects-Armed-Forces-36-000-claims-payouts-past-seven-years.html.
British Medical Journal ‘BMJ Bans “Accidents”’ (2001) 322 BMJ 1320 (2 June)
www.bmj.com/cgi/content/extract/322/7298/1320
Liam Donaldson (Chief Medical Officer) Making Amends: a consultation paper setting out proposals for reforming the approach to clinical negligence in the NHS (HMSO, 2003)
http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4060945.pdf
A practitioner discusses (May 2013) the NHS Litigation Authority’s proposal to pilot a fixed costs scheme for clinical negligence cases up to £25,000:
http://www.kingsleynapley.co.uk/news-and-events/blogs/clinical-negligence-law-blog/pilot-of-fixed-costs-scheme-for-clinical-negligence-claims#page=1
House of Commons Constitutional Affairs Committee, ‘Compensation Culture’, Third Report of Session 2005–06, Vol I
www.parliament.the-stationery-office.co.uk/pa/cm200506/cmselect/cmconst/754/75402.htm
The Association of Personal Injury Lawyers (APIL) view ‘Compensation Culture’ as a myth (though consider their vested interests) and produced a document in conjunction with the TUC exploding ‘Seven Myths about the “compensation culture”’ in March 2014: ‘The Compensation Myth’
http://www.apil.org.uk/files/campaigns/the-compensation-myth-2014.pdf
Written evidence presented by interested parties to the House of Commons Constitutional Affairs Committee for its 'Compensation Culture' consultation (Third Report of Session 2005–06, Vol I)
www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/754/754ii.pdf
News
There are often stories about compensation claims in the news media – also part of what leads to claims about the ‘compensation culture’. Don’t take them all as read – some of them won’t ever make the courts, others have been decided – and remember that headlines are designed to grab attention!
News item on Graham Calvert, a compulsive gambler, who sued bookmaker William Hill for letting him run up £2m in debt despite pleading to be barred from betting, ‘Gambler loses again as high court judge rules his £2m loss was NOT the bookmakers' fault’ (link to case below)
www.dailymail.co.uk/news/article-532012/Gambler-loses-high-court-judge-rules-2m-loss-NOT-bookmakers-fault.html
A video clip of Graham Calvert, a compulsive gambler, who sued bookmaker William Hill for letting him run up £2m in debt despite pleading to be barred from betting. He explains how the problem came about and where he saw William Hill being at fault:
http://news.bbc.co.uk/player/nol/newsid_7240000/newsid_7245000/7245087.stm?bw=bb&mp=wm&news=1&bbcws=1
Student gets dodgem prang damages
http://news.bbc.co.uk/1/hi/northern_ireland/8155493.stm
News reports of a Court of Appeal case in which a decision to award compensation for a child’s death was overturned. The Daily Mail refers to the case as one ‘likely to have major implications for Britain's burgeoning compensation culture’:
Parents of toddler who drowned in holiday park pond are stripped of £25,000 compensation after judges rule 'accidents happen'
www.dailymail.co.uk/news/article-1199415/Parents-toddler-drowned-holiday-park-pond-ordered-repay-25-000-compensation.html
Father who found son dead in caravan park pond must repay £25,000
http://business.timesonline.co.uk/tol/business/law/article6703479.ece
Recent shocking events at the Alton Towers theme park look like they will lead to compensation for those injured:
‘Alton Towers boss pledges to pay victims compensation for horror crash after 'admitting responsibility'’
http://www.mirror.co.uk/news/uk-news/alton-towers-boss-pledges-pay-5847007
‘Alton Towers Crash Victims Could Receive £1 Million In Compensation’
http://www.huffingtonpost.co.uk/2015/06/08/alton-towers-crash-victims-compensation_n_7538676.html
Government acts on compensation culture
https://www.gov.uk/government/news/government-acts-on-compensation-culture
‘The latest stage of a series of reforms to turn the tide on the growing compensation culture has taken effect’, according to a news bulletin published 1 May 2013 by the Ministry of Justice, largely discussing recent reforms to lawyer’s fee packages, the (social) cost of insurance, changes to be made to whiplash claims and a forthcoming change to the Claims Portal (a tool used by lawyers and insurers in the settlement of road traffic claims), extending this to include accidents at work and/or in public spaces, as well as an increase in the maximum value of claims to £25,000 from £10,000. Commenting on the changes, Justice Secretary Chris Grayling said: ‘Today’s changes will not be the end of the Government’s work to tackle the growth of compensation culture’.
Lord Dyson, Master of the Rolls (and who gave judgment in Woodroffe-Hedley v Cuthbertson (1997), the case we have used as an example in Chapter 1 (see section 1.3)), gave a speech at Birmingham University in March 2013 in which he stated that the notion of a compensation culture is ‘a misconception’ and wondered why there was so much media interest in it. The full speech is available at
http://www.judiciary.gov.uk/media/speeches/2013/mr-speech-compensation-culture-fact-or-fantasy
That said, this blog post from April 2013, examines ‘compensation culture’ in the light of the recent Jackson reforms (on these, see chapter 19, section 19.1): Does the UK suffer from a compensation culture? http://lawactually.blogspot.co.uk/2013/04/does-uk-suffer-from-compensation-culture.html
And, while we waited for a ruling from a 7-member Supreme Court on the claims in Smith v MOD (the case was decided after the 3rd edition of the book went to press – it is now discussed in the book in section 6.5.4 and there are a number of links relating to the case and comment on it in the links for Chapter 6), the Daily Mail claimed that we face a ‘£340million bill as compensation culture infects our Armed Forces: 36,000 claims for pay-outs in past seven years’ http://www.dailymail.co.uk/news/article-2312242/340million-compensation-culture-infects-Armed-Forces-36-000-claims-payouts-past-seven-years.html
After the Smith decision, the Guardian reported that military compensation claims were likely to increase: ‘The judgments have also give the green light to claims for compensation far beyond the specific cases before the Supreme Court. Defence officials admitted they face the prospect of facing a huge bill as a result of a flood of litigation’. See ‘Supreme Court MoD ruling 'will have huge impact on military operations'’ (19 June 2013).
On education-related claims, ITV news reported that ‘Compensation culture is 'damaging our children'’: http://www.itv.com/news/2013-06-10/compensation-culture-in-schools-ruining-education/
Girl, 17, wins record £23 million pay-outs for car crash injuries http://www.telegraph.co.uk/news/uknews/law-and-order/9688388/Girl-17-wins-record-23-million-payout-for-car-crash-injuries.html
It might be useful to look at this in conjunction with figure 21.1 and the surrounding information in chapter 21. Why did she get so much?
Even students are getting in on the act!
‘Students awarded £400,000 compensation after complaints’
http://www.bbc.co.uk/news/education-33166429
There is often news about how the NHS will seek to manage damages pay-outs, or in relation to (related) compensation schemes. For example, in October 2016, it was reported that a compensation scheme for babies injured during birth (which costs millions a year) was to be established. Health Minister Jeremy Hunt referred to the problems caused by ‘litigation culture’ preventing midwives from learning from their mistakes… See: ‘New birth injuries compensation scheme announced’ BBC News 17 October 2016
http://www.bbc.co.uk/news/health-37652928
See also: ‘NHS negligence claims hit £1.4bn’ http://www.bbc.co.uk/news/uk-england-36327310
But later: ‘NHSLA set for revamp as government eyes move away from litigation for injured babies’ (22 March 2017)
http://www.litigationfutures.com/news/nhsla-set-revamp-government-eyes-move-away-litigation-injured-babies
On ‘that case’ in the US (the McDonald’s coffee case – see also resources for chapter 12)
Stella Liebeck famously sued McDonald’s after burning herself on their hot coffee. Often cited as the epitome of ‘compensation culture’, here is the story not often told (see also links for chapter 12):
Scalded by Coffee, Then News Media, New York Times video, http://www.nytimes.com/video/us/100000002507537/scalded-by-coffee-then-news-media.html?smid=fb-share
On limitation periods
And asbestos-related claims (see also chapter 9):
The court's discretion to exclude the limitation defence: two recent cases – Nicholas v Ministry of Defence [2013] EWHC 2351 (QB) and Collins v Secretary of State for Business Innovation and Skills [2013] EWHC 1117 (QB)
http://www.lexology.com/library/detail.aspx?g=a9b9e076-0c51-44ab-bfda-598e50d6a380&l=7K6T7Y4
Cases
Tomlinson v Congleton Borough Council [2004]
www.bailii.org/uk/cases/UKHL/2003/47.html
Calvert v William Hill Credit Ltd [2008]
www.bailii.org/ew/cases/EWCA/Civ/2008/1427.html
Thakrar v The Secretary of State for Justice [2015]
http://www.bailii.org/ew/cases/Misc/2015/B44.html
Knauer (Widower and Administrator of the Estate of Sally Ann Knaur) v Ministry of Justice [2016]