17th February 2023
Some of the most depressing case reports to read are tortuous claims when someone has had a life-changing injury.
The case reports are depressing for both what they say and what they do not say.
A person has a horrific injury – such as in this recent case report:
“He sustained catastrophic injuries which have rendered him paraplegic.”
The case report in such a case details the background to the injury and then – because such cases are invariably claims in negligence – there is often elaborate and somewhat artificial consideration of whether there was a duty of care and any warning, and whether there was any contributory negligence and fault.
Sometimes as in the case linked to above, the case can touch on obscure legal provisions which neither party actually had any idea about at the time.
And because there is a case report that means that there is a dispute – and almost invariably (though I do not know about the linked case) the case is contested because an insurer does not want to admit liability.
In other words: the case is really about who (if anyone) pays for the ongoing medical needs of the poor claimant.
Knowing this, it seems unfair that the monies for a person’s medical needs when there has been a catastrophic injury should hinge on whether a piece of evidence had been put in, or a finding of a fact, or the application of some hitherto unknown law.
The person’s needs are still the same.
Reading such judgments is like watching a ball on roulette wheel.
And it is rarely the resources of the nominal defendant which are at stake.
As my tort lecturer said once: the law of tort is really a branch of the law of insurance.
Some jurisdictions, such as New Zealand, have a no fault compensation fund for those who suffer injuries.
This is a better (and no doubt all-round cheaper) way than the dismal case reports where one sees a judge making finely balanced decisions that mean whether someone has their medical needs properly paid for or not.
There is a role for the law of negligence in other matters, but it seems out of place here.
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The perennial issue with the New Zealand system, of course, is under-resourcing. At least in the current system, success in court means that the injured party is (at least hypothetically) fully compensated for past and future suffering and expense. Do we trust the Government to adequately resource a no-fault system in perpetuity?
A no-fault scheme doesn’t have to be government-funded. Think of something like, e.g., the existing compulsory motor insurance scheme, but without the requirement to have to prove negligence in order to claim. The cost is born not by the government but, via insurance premiums, by those required to be insured.
I agree.
I have long felt it especially offensive that so much can turn on the luck of the liability draw when it comes to taxpayer-funded compensation . E.g. why should one baby with injuries the result of NHS negligence receive a vast award from taxpayers when another baby with the same needs but no (or no provable) negligence must rely on benefits? But that seems to be several bridges too far for MPs, the NHS et al.
Even the report last year from the Health and Social Care Committee on NHS litigation[1] looked only to try to streamline awards when the NHS got it wrong. And left people to go to law if they wished.
[1] https://committees.parliament.uk/committee/81/health-and-social-care-committee/news/166099/mps-urge-radical-reforms-to-negligence-compensation-system-that-costs-nhs-billions-each-year/
Many of these cases are of “medical negligence”. Judges are faced with a choice between leaving. A human wreck with no support and finding some departure from perfection in the treatment. This means doctors nurses and hospitals in such cases are held to an impossible standard of performance – one that overlooks the fact that they are human.
Morally, the argument is strong. As a community, we should support members of our community who are rendered helpless. This would be a genuine translation into a community of the neighbour principle, which was mentioned, misleadingly, in Donoghue v. Stephens. The principle means we support other people in distress not because we have some legal obligation to them, but because we are human and so are they. The Samaritan and the wounded man were strangers. The Samaritan was a visitor, but recognised a moral obligation. So, as a community, should any decent country.
Michael
My sympathies to all involved. No doubt the NHS jumped into action to provide the medical care that was required here on a “no fault basis” when the incident occurred give years ago, and I hope everyone was adequately insured so this legal case was simply needed to determine whose insurer should pay out.
But obscure legal provisions? The Construction (Design and Management) Regulations 2015 replaced the CDM 2007 which replaced the CDM 1994, which implemented an EU directive which expanded on safety at work acts from the 1960s and earlier (and query if this would be abolished under the retained EU Law (Revocation and Reform) Bill 2022). The Occupiers Liability Act has been around since the 1950s. Neither should be obscure.
The HSE records that 123 workers were killed in work-related accidents in 2021/22. That includes 30 in construction. And 29 were falls from a height. It also estimates another 560,000 non-fatal injuries, of which 8% were falls from height. Perhaps 40,000 people injured by falling from height at work.
Hindsight is a cruel thing, but an ounce of prevention is worth a pound of cure – and an larger amount if there is no cure.
This was a standard essay question when I did my degree in 1975-78 – cases like Roe v MoH (was that the one about the microscopic cracks in the glass phial containing phenol?) Plus ca change. Or how quickly the snail moveth.
Given that insurance usually picks up the tab, the only real issue is by how much premiums would increase. My guess is that it wouldn’t be a substantial increase.
Obviously more would be paid out in compensation, but with a simpler rule for establishing liability less would be paid out in arguing over liability. Depending on the devilish details, it’s not inevitable that there would be any increase in premiums at all.
As someone who has been involved in similar cases as a lawyer and as a family member I can only agree.
It has seemed to be often that the state could make the quantum award with the various insurance backed parties left to argue over who pays it back.
And, if the action is not about apportioning blame, then there might be a better and more open analysis of what went wrong and how it might be prevented in the future.
It is a tragedy that we have not adopted a no- fault compensation system. I can remember when studying for my law degree nearly 50 years ago that out tort lecturer even then bemoaned the fact and strongly advocated on fairness and economic grounds for such a system . As the case you have highlighted illustrates the arguments in favour remain very strong.
It works in New Zealand, where car insurance is not compulsory (but, incidentally, car testing is more frequent to ensure cars are well maintained).
I sense that the only arguments against it would come from those with a vested interest – insurance companies, litigation lawyers, etc.
The effects on moral hazard and of selection against insurers would need to be considered, but the risk of cavalier site agents or production managers running riskier work places could be offset by more inspectors backed by criminal law penalties- funded perhaps from the increase in liability insurance premiums which would be required.
Your notion does have legs though- there is too much capacity out there in the markets looking for work, so some underwriters will be interested.
In principle at least this seems a very good approach. Largely leave it to the insurers to fight it out among themselves – keep the lawyers out of it. But turkeys – Christmas?
But, but what when there are no insurers or a muddle over who has done the neglect – the contaminated blood scandal say, or Grenfell. The bottom line there is that the UK Treasury is on the hook and mud will stick to a government department and ministers. Traditionally the Treasury and government departments deploy every trick in the book to avoid blame or payout – at great cost to the taxpayer in time and money.
Then there is moral hazard, why should I take reasonable care if some central body will pay up and nothing bad happens to me. Imagine running a parachute jump company on that basis. Or why should I bother insuring my motor car. A good place in the law for a chainsaw perhaps.
For this idea to work it must be all encompassing – government departments, health providers, everyone. The main sanction being the premiums and their enforcement.
Well said.
May I come in again, please? I think we envisage a system under which a helpless cripple has support irrespective of whether the law of tort allows him to sue successfully. It does not seem to me to follow that someone who is responsible for life-changing injuries inflicted walks away with no enforceable responsibility. I assume he is still liable to prosecution under the criminal law. But why should not the State authority that supports the injured person be entitled to say to a tortious driver, “this man has been converted from a functioning active person into a cripple by your wrongful action. We will support him and meet his needs, but you must also take civil liability for the harm you have done”?
There might be a bonus. If a driver knows he can can no longer pass on the responsibility for his wrongful act to an insurance company, isn’t there a possibility that his driving may improve?
Even if liability is accepted, quantum of damages can easily turn into a gravy train for legal and medical experts alike.
Read also the Governments’s own guidelines on its Criminal Injuries Compensation Scheme. The majority of the population would soon be lost and confused.
There is also the MIB scheme for the victims of uninsured car drivers. If you leave this to be administered by the Insurance industry what could possibly go wrong ? Here the uninitiated should read Atiyah.
Admittedly the two schemes cited are still fault based but their imperfections highlight the difficulties.
Whilst the concept of no fault compensation is laudable it will not be a universal panacea.