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barrier design) is an important cause of level-crossing accidents: Health and Safety Executive,
Railway Safety 1991/2 (HMSO, 1992). See also Robens Committee Report, paras. 30“1.
41 Research on Road Safety (HMSO, 1963), 498.
42 Leeming, Road Accidents: Prevent or Punish?, argues that the law was itself a factor in preventing
earlier recognition by highway engineers of the importance of surface type in skidding accidents,
because it encouraged highway authorities to think that skidding accidents were simply the fault
of drivers and to ignore the need for accident prevention measures not directed at motorists.
190 Chapter 7

Many other illustrations could be given. A motorist crashes into the car in front
while driving at night, although that car has its lights on. Who is to blame? Evidently
the driver of the rear car. But suppose we discover that cars as old as the front vehicle
are six times as likely as other cars to be involved in accidents of this kind because
their lights are less satisfactory: would we still so con¬dently say that the driver of
the rear car was to blame? A motorist fails to see, or understand the meaning of a
road sign, and an accident ensues. Who is to blame? Obviously the motorist. But is
it still so obvious when we know that many motorists, even when under observation
and consciously trying to be at their most attentive, still fail to observe some road
signs?43 Or when we know that only a small fraction of motorists know what some
signs mean?44
There are still wider considerations that emerge from statistics. A child, playing
ball with another child in the street, is run over and killed. Whose fault is it? Plainly
the child™s own fault. But when we know that children who come from poor homes
and have nowhere to play are more likely to be involved in road accidents than other
children, are we still so con¬dent of our conclusion?45 Do we not begin to think that
the organization of society may have some responsibility in the matter?
Research into the causes of road accidents shows that some accidents (and
some injuries) can be prevented more easily by improved road engineering and
improved vehicle design46 than by punishing or deterring bad drivers or exhorting
them to drive more safely.47 If society chooses to spend its money on other things


43 See Austin, Accident Black Spot, 138. Leeming, Road Accident: Prevent or Punish?, 64“8 gives an
example of a road junction which was the scene of many accidents. More than one hundred
motorists were prosecuted and ¬ned for failing to stop etc., before it was realized that the layout
of the junction was such that motorists were unable to see the ˜Stop™ line in the road until it was
too late.
44 TRRL Laboratory Report 91.
45 Research on Road Safety (1963), 57; N. Christie, ˜Social, economic and environmental factors in
child pedestrian accidents: a research review™ Transport Research Laboratory (TRL), Project
Report 116 (1995) (this report also reviews empirical research which supports the imposition of
lower standards of care on children on the basis of developmental limitations); N. Christie, ˜The
high risk child pedestrian: socio-economic and environmental factors in their accidents™ TRL
Project Report 117 (1995).
46 The obvious example is the introduction of seat belts: TRRL Report RR 239 (1989). One writer
claims that in the USA, where product liability claims by road accident victims against vehicle
manufacturers are quite common, only one out of every 320 victims of disabling injuries on the
road makes a serious claim against a vehicle manufacturer: G.T. Schwartz, ˜The Beginning and
the Possible End of the Rise of Modern American Tort Law™ (1992) 26 Georgia LR 601, 633. On
the other hand, a very signi¬cant proportion of product liability claims in the USA are made by
employees injured at work who, under workers™ compensation laws, are not allowed to sue their
employers in negligence. This contrast tells us nothing about the causal relevance of product
defects in the two contexts; it only tells us that in the road context, there is no great incentive to
sue a manufacturer because motorists make much easier targets.
47 It has also been suggested that product and environmental design is a more e¬cient way of reduc-
ing the frequency of home and leisure accidents. Despite the fact that personal and social factors
(such as illness or a stressful family environment) play a very important part in the causation of
many such accidents, it is thought that education and publicity are less e¬ective than safe product
and environment design at avoiding accidents: Department of Trade and Industry, Personal
Factors in Domestic Accidents: Prevention through Product and Environmental Design (1983).
An appraisal of the fault principle 191

than improved roads, is the ˜negligent™ motorist, rather than society as a whole, really
responsible for accidents? So far as vehicle design is concerned, the motor manu-
facturer bears the primary responsibility; but society as a whole cannot escape all
responsibility. Safer cars are, typically, more expensive cars, and for this reason alone
manufacturers are unlikely to be willing to produce safer cars unless car buyers are
willing to pay more for them.
The fact that in the road accident ¬eld the fault system has hitherto been directed
almost exclusively at motorists does not mean that it may not in the future be used
against motor manufacturers “ and highway authorities as well: the Highways
(Miscellaneous Provisions) Act 1961, which abolished the immunity of highway
authorities from liability for nonfeasance, removed a major legal obstacle in the way
of suing them for negligence in respect of road accidents (although this has not
resulted in much litigation).
But all this makes little di¬erence to the central point. Certainly, the fault sys-
tem could be a lot less crude; certainly, we could start bringing negligent design
within its scope; and in the result we might even succeed in shifting (at least in the
¬rst instance) quite a lot of the cost of road accidents to motor manufacturers and
highway authorities. But the central point we have been making is that the fault
principle leads us to seize on a limited number of relatively obvious accident-
causing factors, and to blame the party responsible for these as having been ˜neg-
ligent™. This whole process looks a lot less rational when we move away from the
particular accident in question and survey the whole ¬eld. From this new vantage
point, many accident victims who go uncompensated because there does not
appear to have been any responsible negligent individual, may be thought to have
a good claim against society. And even if we cannot say that society is in any mean-
ingful sense ˜at fault™, we might still want to say that since road accidents are a cost
of living in a mobile society, that cost ought to be borne by society at large and
not by the individuals who su¬er on the roads. Furthermore, the issues raised in
this section become much more acute when we turn our attention to illness and
disease. In this context, we are much more alive to the possibility that personal
injury may have a number of concurrent causes; that none, one or some of these
causes may be faulty human conduct; and that we know very little about the cau-
sation of many diseases. As a result, we more easily recognize that the fault-based
tort system is an extremely poor mechanism for deciding which victims of illness
and disease deserve compensation.
More generally, the fact that many accidents and diseases are not the result of the
fault of any identi¬able individual does not mean that the victims of such accidents
and diseases do not deserve compensation; and the fact that many accidents and dis-
eases are not, in any meaningful sense, anyone™s fault but are the result of perfectly
legitimate choices between con¬‚icting goals, does not mean that the victims of such
accidents and diseases do not deserve compensation. Even if we accept that fault is
a suitable criterion of entitlement to compensation, we may not accept that it is the
only suitable criterion.
192 Chapter 7

7.7 The fault principle contributes to a culture of blaming
and discourages people from taking responsibility for their
own lives
Finally, let us consider a criticism of the fault principle from a social point of view.
Some people disparagingly say that we now live in a ˜blame culture™48 or a ˜compen-
sation culture™.49 By this they seem to mean that when things go wrong, people tend
to look for someone else to blame rather than entertaining the thought that they
themselves ought to take responsibility for what happened to them or just accept-
ing the misfortune as ˜one of those things™. Increasingly, too, so it is said, people go
beyond blaming to complaining to some o¬cial or body, or even claiming in tort or
on some other legal basis. In Britain, at least, the development of the ˜blame culture™
may be associated with major shifts in economic and social policy that have
occurred in the last 30 years. In the heyday of the Welfare State in the 1960s and
1970s, people spoke of the ˜dependency culture™. The idea was that being able and
even encouraged to look to the state to deal with misfortunes made people depen-
dent and sapped their personal initiative. New emphasis in the 1980s and 1990s on
the individual was designed in part to wean people o¬ dependence on the state and
on to self-reliance. But things have gone rather wrong. For many, so the argument
might run, individualism has come to mean not self-reliance in the face of adver-
sity, but the assumption that some other individual must be to blame for one™s mis-
fortunes. The focus is not on the individual™s responsibility for themselves but on the
individual™s rights against others. Atiyah argues that the courts have contributed to
this regrettable development by ˜stretching the law™ in various ways in favour of the
injured50 to the point where it is possible to recover large awards of compensation
for injuries from people who are not, in any real sense, to blame for those injuries.
In evaluating the validity of such concerns in relation to liability for personal
injuries and death in particular, we need to distinguish between growth in the
number of tort claims, and growth in the amounts paid out in tort compensation.
Consider, ¬rst, the number of tort claims for personal injury and death. As we will
see (8.1.4), the Pearson Commission estimated that there were about 250,000 tort
claims a year in the early to mid-1970s, of which perhaps 215,000 resulted in the
payment of some compensation. A review in the late 1980s estimated that the annual
number of tort claims had increased to about 340,000. Reliable statistics show that
there are now some 750,000 successful tort claims each year. So even if we assume
that the earlier ¬gures were under-estimates, we can say with some con¬dence that
the number of successful tort claims has increased about threefold in the past 30 years

48 A major statement of this position is P.S. Atiyah, The Damages Lottery (Oxford, 1997). The argu-
ment was pithily put by Lord Templeman when he said, ˜People now look for someone to blame,
anybody but themselves, whereas many accidents are purely bad luck™: The Times, 20 June 1995.
49 See e.g. F. Furedi, Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain
(London, 1999); Institute of Actuaries, The Cost of Compensation Culture (London, 2002); Aon
Ltd, Compensation and Blame Culture: Reality or Myth? (London, 2004).
50 Atiyah, The Damages Lottery, chs. 2 and 3.
An appraisal of the fault principle 193

or so. But this ball-park ¬gure masks some signi¬cant details. For instance, it appears
that the number of medical negligence claims has increased about seventeen times
since the 1970s, while the number of public liability (occupier™s liability) claims may
have increased eight times. However, these ¬gures are apt to mislead unless attention
is also paid to the relative numbers of claims of various types. According to the
Pearson Commission, the largest single group of claims (about 47%) arose out of
workplace injuries and diseases. Road-accident claims came second at about 41%.
Public liability claims represented only about 5% of the total, and medical negligence
claims considerably less than 1%. The latest ¬gures present a rather di¬erent picture.
More than half of all successful tort claims today arise out of road accidents.
Workplace claims now represent only about 30% of claims, while public liability
claims come in at around 12%. Despite large growth in the absolute numbers of
medical negligence claims, they still represent only about 1% of the total. Although
certain types of claims “ for instance, those arising out of the side-e¬ects of drugs “
often attract a great deal of media attention and potentially, at least, test the limits of
tort liability, they represent a vanishingly small proportion of successful tort claims.
In my opinion, even if it is true that courts have ˜stretched™ the rules of tort lia-
bility in the past 30 years in favour of claimants, this cannot explain the greatly
increased volume and changed pattern of tort claiming over that period. This is not
to say that there have been no signi¬cant pro-claimant changes in tort law in recent
years. The decision of the House of Lords in the mesothelioma case of Fairchild
(5.2.2) is an obvious example of such a development “ although its impact on the
total number of tort claims is likely to be relatively small. However, the basic rules
of tort law, as they apply to the vast bulk of road accident, employer™s liability, occu-
pier™s liability and medical negligence claims, have not changed signi¬cantly since
the 1970s. It may be that courts have become more ˜pro-claimant™ in the way they
apply the rules, and that this has a¬ected settlement practice; but it seems highly
unlikely that such a change in the practice of courts and insurance companies could
have played more than a minor role in generating a threefold increase in successful
tort claims in three decades.51 Moreover, the fact that the relative number of
employer™s liability claims has fallen signi¬cantly should alert us to the possible rel-
evance of non-legal factors in explaining changing patterns of tort claiming “ in
this case, perhaps, the rapid decline of high-risk manufacturing industry (such as
coal-mining) and growth in the service sector (where rates of injury and illness are
much lower), as well as improved safety standards and practices in the workplace.
So how might we explain the tripling of tort claiming since the 1970s? Proba-
bly signi¬cant have been changes in the legal services market. In the 1970s quali-
¬ed lawyers were, e¬ectively, the only providers of what are now called ˜claims
management services™. There were few, if any, specialist personal injury lawyers,


51 The ˜stretching the law™ argument seems to imply that some types of negligence claims that would
certainly have failed in the 1970s can succeed in 2006. This may be true, but it seems unlikely that
a signi¬cant proportion of the main categories of successful tort claims are of such types.
194 Chapter 7

certainly amongst solicitors; and lawyers did not advertise their services.
Specialist personal injury law ¬rms representing claimants began to emerge in
the 1980s, and some are now very large. The Association of Personal Injury
Lawyers represents and promotes the interests of personal injury lawyers (who,
in the USA, are called ˜plainti¬™s lawyers™), and even publishes its own journal “
the Journal of Personal Injury Law. Today, quali¬ed lawyers are not the only
providers of claims management services. It is estimated that there are some 400
claims management companies (CMCs) (10.2) handling around 500,000 claims
(including tort claims) each year. Claims management services are now widely
advertised, especially on TV. Such advertising, and increased media coverage of
the tort system, have probably raised signi¬cantly public awareness of the possi-
bility of claiming damages for personal injury as well as expectations about the
chances of success of such claims.52
More speculatively, increased claiming is perhaps one aspect of a larger social
development that might be described as ˜the rights culture™, re¬‚ected most obvi-
ously in the Human Rights Act 1998 (HRA 1998), which gives force in English law
to the European Convention on Human Rights (ECHR). The enactment of the
HRA 1998 was the culmination of a political process that began in the late 1980s.
In the 1990s the Conservative government™s Citizens™ Charter also played an
important part in creating a social environment in which complaining and claim-
ing was encouraged and became accepted as an appropriate response to individu-
als™ grievances. The rights culture is built on a strong concept of individual
entitlement. Courts and legal processes play a central role in vindicating such enti-
tlements; and in 3.1 we saw that the ECtHR has already had an impact on negli-
gence law, causing English courts to modify their techniques for limiting the scope
of liability. In such circumstances it should not, perhaps, surprise us that people
have had increasing recourse to tort law and the tort system.
My tentative conclusion, therefore, is that factors other than ˜stretching™ of the
rules of tort liability provide the best explanations of increased tort claiming, espe-
cially in the past 20 years.
Turning to growth in the amounts paid out in tort compensation, the Pearson
Commission estimated that annually some £202 million was paid out in tort com-
pensation at an administrative cost of some £175 million. Making allowance for
in¬‚ation, these amounts would respectively be around £800 million and £700
million in today™s money. On the basis of a threefold increase in claims, we might
estimate that the cost of the tort system today would be in the region of £4.5
billion per annum. However, various contemporary estimates (or guesstimates)
are considerably higher than this, ranging from £7.2 billion53 to as high as

52 For recent research about the link between advertising and perceptions of the tort system see
Department for Constitutional A¬airs, E¬ects of Advertising in Respect of Compensation Claims for
Personal Injuries (March 2006).
53 Compensation Bill Final Regulatory Impact Assessment (2005), para. 21. This ¬gure relates to
2004.
An appraisal of the fault principle 195

£14 billion. Let us suppose for the sake of argument that the cost of the tort system
has almost doubled in real terms (i.e. over and above what would be expected
given in¬‚ation and the increase in the number of successful claims) since the
1970s. How might we account for such an increase? Advances in medical tech-
nology have probably played an important part. Although the most serious tort
claims represent a very small proportion of the total number of claims, they
account for a very signi¬cant proportion of total tort compensation. As a result
of advances in medical technology in the past 30 years, seriously injured people
can be kept alive for much longer and with a better quality of life than formerly,
although at very considerable expense. As a result, compensation for loss of
income and for medical expenses in such cases may be very much higher than it
would have been in the 1970s. Moreover, the cost of medical and nursing care and
services appears to have increased at a rate considerably above the general rate of
in¬‚ation. But in relation to the size of tort claims as opposed to their number, it
is also more plausible to attribute at least some of the increase in the total cost of
claims to changes in the law. Important developments have included changes
relating to interest payable on damages awards; the introduction of damages for
loss of earnings in the ˜lost years™, for the value of gratuitous care and for loss of
ability to perform unpaid domestic services; increased itemization of damages for
¬nancial loss (6.2); increases in the tari¬ of awards for non-pecuniary loss; reduc-
tion of the discount rate; and the introduction of a scheme for recoupment from
liability insurers of social security bene¬ts paid to victims.54 The cost of tort com-
pensation will increase even more when the scheme for requiring tortfeasors to
pay a signi¬cant proportion of the cost to the NHS of treating victims is fully
operational (probably sometime in 2006). Furthermore, some people argue that
changes in procedural rules in recent years have meant that the legal costs of set-
tling claims, especially smaller claims (which greatly outnumber large and serious
claims), have increased considerably. Finally, the new power to make periodical
payment orders (6.1.5.4) may put upward pressure on the cost of compensation
in serious cases.
So while it seems unlikely that changes in the law have played much role in the
increase in the number of tort claims, it seems plausible that they are responsible for
a signi¬cant real increase in the cost of tort compensation. Whatever the real cause,
the rhetoric of individual responsibility and the blame culture, and the supporting
idea that the tort system is out of control, has had a potent e¬ect on legal policy-
making in countries such as the USA and Australia. Over the past 20 years, ˜tort
reform legislation™, designed to reduce the incidence of tort claiming and the aggre-
gate amounts paid out in tort compensation, has been passed in many US jurisdic-
tions. Much of this legislative activity has been provoked by political lobbying and



54 See 15.4.5. This scheme did not increase the total amount of compensation paid but did transfer
some of the cost from the public purse to private (liability) insurance.
196 Chapter 7

media campaigns based on false or misleading assertions about the volume of tort
claims and levels of tort compensation payable in individual cases.55 In Australia in
2001“2 premiums for certain classes of liability insurance “ notably medical indem-
nity and public liability insurance “ rose sharply, with actual or potential adverse
e¬ects (or so it was alleged) on the availability of certain types of medical services
in certain areas of the country, and on community activities such as fetes and sport-
ing ¬xtures. A resulting sense that there was an ˜insurance crisis™, combined with a
suggestion that the tort law was ˜the last outpost of the welfare state™,56 provoked a
spate of tort reform legislation designed partly to make it harder for tort claims to
succeed, and partly to reduce compensation levels and payments.57
One of the assumptions underlying these reforms was that increases in the
volume of tort litigation and in the aggregate amount of compensation had been
a signi¬cant trigger of increases in premiums. However, such evidence as was
available revealed no increases in tort claims or recoveries such as could explain
the size and suddenness of the premium increases. Probably the most important
precipitating factors were the recent collapse of a major medical indemnity
insurer and a major public liability insurer. Another contributory factor may have
been sharp increases in the cost of reinsurance58 as a result of the events of 11
September 2001.59 These company failures suddenly and signi¬cantly reduced
capacity in both the a¬ected sectors of the insurance market; and reduced avail-
ability of a product without any decrease in demand tends to push prices up.
Moreover, government inquiries found that both failed insurers had been badly
managed: during the 1990s they had competed aggressively for market share by
setting premiums at uneconomically low levels, thus forcing other insurers to do
the same; and as a result, inadequate provision had been made for future claims.
When the aggressive competitors fell out of the market, the remaining insurers
were then able to take the necessary and overdue step of raising premiums to
make up for past losses and increase provision for future liabilities. Such increases
were necessarily large.
In Britain, too, there has been liability insurance ˜crisis™ in recent years, involving
sudden, large premium increases and reduced availability; but it has mainly a¬ected

55 W. Haltom and M. McCann, Distorting the Law: Politics, Media and the Litigation Crisis (Chicago
and London, 2004); S. Daniels and J. Martin,˜Persistence is not Always a Virtue: Tort Reform, Civil
Liability for Health Care and the Lack of Empirical Evidence™ (1997) 15 Behavioural Sciences and
the Law 3.
56 J.J. Spigelman, ˜Negligence: The Last Outpost of the Welfare State™ (2002) 76 Australian LJ 432.
This article was particularly in¬‚uential not only because of its timing but also because its author
is Chief Justice of New South Wales.
57 For background see P. Cane, ˜Reforming Tort Law in Australia: A Personal Perspective™ (2003) 27
Melbourne ULR 649. Various other measures were taken at the taxpayer™s expense to reduce the
burden of medical indemnity insurance premiums on doctors in the private sector.
58 Reinsurance is wholesale insurance purchased by retail insurers to cover their exposure to their
policy-holders.
59 But the Association of British Insurers told the O¬ce of Fair Trading that any increase in the cost
of liability insurance as a result of increases in the cost of reinsurance was ˜negligible™: OFT, The
UK Liability Insurance Market: Summary of Key Findings (2003), para. 4.19.
An appraisal of the fault principle 197

employers™ liability insurance.60 It is no coincidence that 2001 saw the collapse of an
insurer (Independent Insurance) specializing in this line of insurance, which had
engaged in aggressive competition and premium discounting in the 1990s.61 But
since this company held only about 7% of the market, the e¬ect of its collapse would
not have been as great as the e¬ect of the collapses in Australia of companies with a
much larger share of the relevant market. Nevertheless, the main cause of sudden
increases in the cost of employers™ liability insurance appears to have been the need
to catch up after a long period of unrealistically low premiums in the 1990s.62 There
have been no consequential calls or moves to change tort law. Instead, ˜initiatives™
have been taken by the government, insurers and employers™ organizations to reduce
the legal costs of low-value claims by employees and to reward employers, who can
demonstrate that they have devoted increased resources to improved safety, with
reduced premiums. The latter development, at least, appears to have had little
impact on premiums. This would not be surprising if the main cause of insurance
crises were (as all the evidence suggests) features of the operation of the insurance
market rather than changing patterns of tort claims and compensation. The basic
point is that even if the volume of tort claims and the cost of compensation are on
an inexorably upward trend, this cannot easily explain sudden large ˜spikes™ in the
cost of insurance which earn the name of insurance ˜crises™.
Is a three-fold increase in the number of tort claims and a doubling of tort com-
pensation payouts in 30-odd years cause for either concern or celebration? Much
will depend on the perspective taken. Those who think well of the tort system will
see these developments as cause for satisfaction, while those who (like Atiyah and
Cane) think that it is a socially undesirable and economically ine¬cient way of
compensating victims of personal injury will bemoan the fact that it now con-
sumes relatively much more of society™s resources than it did in the 1970s. An
important criticism of the tort system is that for various reasons, a signi¬cant pro-
portion of injured people who might in theory be entitled to tort compensation
do not actually receive it. We have also noted the criticism (6.4) that the tort system
does not ful¬l in practice its theoretical commitment to the full compensation
principle. To the extent that the increase in the number of tort claims and in the

60 Employers are required by statute to take out liability insurance in respect of injuries to their
employees; but it has been suggested that one result of the insurance crisis was an increase in the
numbers of employers failing to insure. (Whereas failure to take out compulsory motor vehicle
liability insurance is a criminal o¬ence, failure to take out compulsory employers™ liability insur-
ance is not.) See generally Department for Work and Pensions, Review of Employers™ Liability
Compulsory Insurance: First Stage Report (June 2003); Second Stage Report (December 2003). For
a more recent survey of the liability insurance market generally see O¬ce of Fair Trading, The UK
Liability Insurance Market: a Follow-up to the OFT™s 2003 Market Study (June 2005). There is also
some evidence of problems in the public liability sector: e.g. D. Bamber, ˜School Trips and
Charities Hit by Soaring Insurance Costs™, Telegraph, 29 August 2004.
61 O¬ce of Fair Trading, The UK Liability Insurance Market: Summary of Key Findings (June 2003),
paras. 4.24“5, 4.32.
62 Coupled with falls in insurers™ investment income: insurers have two main sources of income “
premiums and returns on investment of reserves. See DWP, Review of Employers™ Liability
Compulsory Insurance: First Stage Report, 35“42.
198 Chapter 7

total compensation payout represents an increase in the e¬ective coverage of the
tort system and achieves a closer approximation to the ideal of full compensation,
they can be seen as desirable developments. However, they might be viewed
di¬erently by those who consider unjusti¬ed the favoured position of those dis-
abled people fortunate enough to secure tort compensation.
There is no simple answer to the question of how much society should spend on
compensating the injured, or on what basis such compensation ought to be dis-
tributed. Independently of the cost of insurance, it might be thought that litigation
is an undesirable way of solving personal and social problems and ought to be dis-
couraged, especially in cases of minor injury; or that excessive tort litigation threat-
ens to sti¬‚e innovation. On the other hand, it may be argued that the possibility of
legal liability for personal injuries provides useful incentives to potential injurers to
take more care than they otherwise might; that increasing recourse to tort law can
only improve safety and reduce the social toll of accidents and injury; and that
being able to sue empowers the injured and provides ˜access to justice™. Even if we
had the facts necessary to assess properly arguments such as these “ which, on the
whole, we do not “ people could still reasonably disagree about how much ˜blaming
and claiming™ is too much or too little.
One thing seems clear: the language of ˜crisis™ and the ˜compensation culture™ has
a powerful e¬ect on the way people view the tort system, however ¬rmly or inse-
curely rooted in reality such ideas might be.63 Perceptions may be just as important
as facts, and it may be very di¬cult to align the two.

63 See, for instance, Better Regulation Task Force, Better Routes to Redress (May 2004); Tackling the
˜Compensation Culture™. Government Response to the Better Regulation Task Force Report: ˜Better
Routes to Redress™ (November 2004). Recent research found a strong and widespread belief that
the number of people making successful personal injury claims and false personal injury claims
has risen greatly since 2000, and that there is a culture of false claiming: DCA, E¬ects of Advertising
in Respect of Compensation Claims for Personal Injuries (March 2006).
Part 3

The tort system in operation
8

Claims and claimants




8.1 Accident victims and tort claimants
Who actually makes tort claims and gets tort damages? How are these claims
resolved? What proportion of people who could in theory make tort claims actu-
ally do so? In this chapter we investigate such important issues.

8.1.1 Cases reaching trial
According to the Pearson Commission, in 1974 some 2,203 cases of personal injury
and death (less than 1% of the estimated number of tort claims) were actually tried
in the courts of the whole of the UK. In England and Wales alone, the ¬gure was
1,870. Of this ¬gure of 1,870 cases reaching trial and receiving a full hearing, 1,169
were tried in the High Court, and 701 cases in the county courts.1 At the time these
¬gures were compiled, personal injury and fatal accident cases constituted the over-
whelming bulk of the work of the Queen™s Bench Division. Indeed, the Pearson
Commission estimated that nearly 80% of the work of this Division consisted of
such actions.2 By contrast, personal injury actions formed a much smaller propor-
tion of the business of county courts. This was still true in 1986 when, according to
the Civil Justice Review,3 the number of personal injury trials completed was 1,400
in the High Court and 3,500 in county courts. As a result of subsequent reforms,
the great majority of personal injury actions that reach court are now tried in
county courts by circuit (senior) or district (junior) judges.4 Thus in 2004, 290
medical negligence and 400 other personal injury actions were set down for trial in
the High Court, whereas about 10,000 personal injury claims were set down for


1 Pearson Report, vol. 2, table 124.
2 Ibid., para. 83.
3 Cm 394 (1988), para. 393.
4 This change was e¬ected by the High Court and County Courts Jurisdiction Order 1991. Cases
involving claims for less than £50,000 must be commenced in the county court, and if such a
claim reaches trial, the trial will usually take place in the county court. However, cases can be
transferred to the High Court if this is thought advantageous. For instance, this was done in rela-
tion to a large number of claims arising out of the use of the drug Benzodiazepine, so that
the claims could be managed as a group rather than being dealt with individually by circuit
judges.


201
202 Chapter 8

Table 5. Court waiting times in personal injury actions

Average time Average time Average time
between issue between setting between issue of
of claim and down and start claim and start
setting down of trial (or date of trial (or date
Court and Location of disposal) of disposal)

High Court, London 16 weeks 67 weeks 85 weeks
High Court outside London 85 weeks 54 weeks 139 weeks
County court, London 28 weeks 31 weeks 60 weeks
County court outside London 23 weeks 29 weeks 53 weeks


trial in the county court.5 Judgment was given in only 40 of the medical negligence
and 130 of the other personal injury cases in the High Court. The rest were settled
either before or during the hearing, withdrawn or struck out. In the county court,
judgment was given in about 6,800 of the 10,000 cases that were set down for trial.
The main aim of this jurisdictional change was to reduce delays; but at the time
there were serious delays in the county court itself. Table 5 shows waiting times in
2004. Judging by these statistics, the reform seems to have had a positive e¬ect, at
least in relative terms. It needs to be borne in mind, however, that waiting times are
determined not solely or even primarily by the availability of judicial time, but by
the pace at which the parties progress the case. Furthermore, the cases now heard
in the High Court are likely to be the most serious and so likely to take the most
time to prepare and try. Even so, the di¬erence between waiting times in the High
Court in London and elsewhere is striking.
The jurisdictional change was criticized on the ground that because High Court
judges are of higher calibre and occupy a more important constitutional position
than circuit judges, it was wrong to remove from the High Court exactly the type
of action which is most commonly brought by individual citizens as opposed to
corporations or public bodies.6 High quality justice, it was argued, should not be
the preserve of the rich and powerful.
The Pearson Commission did not give any details of personal injury cases that
received a full hearing. Some further information is available from a study con-
ducted by Professor Zander in 1973“4.7 Zander examined some 660 cases of per-
sonal injury claims in the Queen™s Bench Division in four large cities in 1973. The


5 Judicial Statistics 2004. In the county court, a claim likely to be worth no more than £1,000 will be
dealt with by the small-claims procedure (10.4). About 15% of personal-injury claims in the
county court are dealt with in this way. In 2000 the average time between issue of proceedings and
the start of a small-claims trial was 29 weeks: N. Madge,˜Small Claims in the County Court™ (2004)
23 CJQ, 201, 204.
6 J. Malins, ˜A signal failure™ [1988] New LJ 419.
7 Guardian Gazette, 25 June 1975, 679.
Claims and claimants 203

vast majority (92%) of these claims arose out of accidents on the road and at work.
Only 124 of these claims actually reached trial,8 and they were overwhelmingly
(91%) industrial injury cases. In the Civil Justice Review sample of 796 tried cases,
42% arose out of work accidents and 32% out of road accidents.
Although road and work accident cases together constitute by far the largest
proportion of personal injury actions which receive a full trial, it is clear that
some other categories of case may be more common now than in 1973. For
example, in Zander™s sample of 660 claims there were only ¬ve claims arising out
of medical treatment. It is known that there was a signi¬cant increase in the
number of such claims in the 1980s9 and the 1990s,10 and it is unlikely that this
increase in claims was not also accompanied by an increase in trials. There has
also been a great increase in recent years in the number of tort claims based on
major disasters (such as ¬res and rail crashes) and on the su¬ering of illness and
disease as a result of exposure to toxic substances (such as asbestos) and the use
of drugs (such as Opren and Vioxx) and other products (such as intra-uterine
devices and silicone breast implants). Although the vast majority of such claims
that result in the payment of compensation are settled out of court, a signi¬cant
increase in claims will inevitably produce some increase in trials in the form, for
instance, of ˜lead cases™.

8.1.2 Cases set down for trial
As already noted, very many cases set down for trial never actually receive a full
hearing. In 2004, 290 medical negligence and 400 other personal injury cases were
set down for trial in the High Court;11 but of these, only 40 and 130 respectively
received a full trial. In the county court in the same year, about 10,000 personal
injury cases were set down for trial, of which about 6,800 received a full hearing.
The pressures to settle are great, even after a case is set down, and a signi¬cant
number of cases are settled, more or less literally, at the door of the court just before
the trial is due to begin. A signi¬cant number are even settled during the course of
the trial.

8.1.3 Actions commenced
According to the Civil Justice Review, of an estimated total of 340,000 personal
injury claims made in 1986, court proceedings were started in some 51,000. By
contrast, in 2004 only 384 medical negligence actions and 749 other personal
injury actions were commenced in the High Court. There are no equivalent

8 In the Harris 1984 Survey only ¬ve out of the 1,177 cases in the survey were fully tried; court pro-
ceedings were commenced in just under 40% of the cases in which out-of-court settlement was
¬nally reached (112).
9 P. Fenn and C. Whelan,˜Medical litigation: trends, causes, consequences™ in R. Dingwall ed., Socio-
legal Aspects of Medical Practice (London, 1989).
10 P. Fenn et al.,˜Current Cost of Medical Negligence in NHS Hospitals: Analysis of Claims Database™
(2000) 320 British Medical Journal 1567.
11 Judicial Statistics 2004.
204 Chapter 8

statistics for the county court, where the majority of personal injury actions are
commenced.12
A signi¬cant proportion of cases in which proceedings are commenced are
settled before being set down for trial: 13
Formal legal proceedings may be used to indicate the plaintiªs resolve in the face of an
apparently intransigent defendant; to prevent a claim becoming time barred; or
because a proposed settlement involves a child and this requires the approval of the
court.

The Pearson Commission estimated that 86% of claims are disposed of without
commencement of legal proceedings,14 and that a further 11% are settled after
proceedings commence but before being set down for trial.15 According to the
Civil Justice Review, 960 High Court actions and 500 county court actions were
settled at this stage in 1986 (compared with 1,400 completed High Court trials
and 3,500 completed county court trials). A survey of 759 medical negligence
claims made in 1989 found that 33% were resolved without the issue of formal
proceedings; but also that the larger the claim, the more likely that court pro-
ceedings would be started. Indeed, this happened in all cases in which the amount
recovered was more than £50,000.16 Research conducted in the late 1990s found
that proceedings were commenced in only about 10% of medical negligence
claims.17

8.1.4 All tort claims
The Pearson Commission for the ¬rst time o¬ered, as being reasonably precise,
some estimates of the total numbers of tort claims for personal injury and death,
whether settled or tried. The Commission estimated that every year there were
approximately 250,000 such claims; in about 215,000 cases the claimant received
some payment whether as a result of a settlement or a trial. In 1988 the Civil Justice
Review estimated annual personal injury tort claims to number about 340,000.18
According to ¬gures published by the DWP, in 2004“5 more than 755,000 ˜cases™
were ˜registered™, and more than 845,000 ˜settlements™ were ˜recorded™, with the
Compensation Recovery Unit (CRU) for the purposes of the schemes for recoup-
ing social security payments and NHS costs from tortfeasors (15.3, 15.4.5). Note

12 Since the introduction of the Woolf reforms the total number of actions (of all types) commenced
in English county courts has dropped by almost 30%: J. Peysner and M. Seneviratne, The
Management of Civil Cases: the Courts and the Post-Woolf Landscape (DCA Research Series 9/05,
November 2005), p. 8.
13 P. Hoyte, ˜Unsound Practice: The Epidemiology of Medical Negligence™ [1995] Medical LR 53, 55.
14 As a result of the Woolf procedural reforms (see generally ch. 10), this percentage may have been
increased: R. Lewis, ˜Insurance and the Tort System™ (2005) 25 LS 85, 88 n. 18.
15 Pearson Report, vol. 2, table 12.
16 Hoyte, Unsound Practice, p. 55.
17 L. Mulcahy, ˜Threatening Behaviour? The Challenge Posed by Medical Negligence Claims™ (2000)
3 Current Legal Issues 81, 90.
18 Cm 394, para. 391.
Claims and claimants 205

that the higher Pearson ¬gure and the Civil Justice Review ¬gure represent all tort
claims, successful and unsuccessful, whereas the CRU ¬gures represent successful
claims.19 It appears, therefore, that the total number of personal injury claims has
increased some threefold since the 1970s, and has more or less doubled since the late
1980s. The CRU ¬gures are likely to be more accurate than earlier estimates, and the
apparently huge increase in tort claims in the past 30 years or so may suggest that
the earlier ¬gures were too low.
According to CRU ¬gures, more than half (by number) of all tort com-
pensation payments are made in road accident cases, more than a quarter in cases of
work-related injury and illness, around 12% in cases involving accidents in public
places and on privately owned land (˜public liability™ cases), and less than 2% in
all other types of case, including medical negligence and product liability. There is
no reason to think that these proportions of the various types of successful tort
claims do not roughly re¬‚ect the proportions of the various types of tort claims,
both successful and unsuccessful. Comparing these ¬gures with equivalents given
by the Pearson Commission20 we can see that over the past 30 years or so there has
been a signi¬cant fall (from around 47% to around 30%) in the proportion of work
claims and a large increase (from about 5% to around 12%) in the proportion of
what Pearson called ˜occupiers™ liability claims™ “ these are roughly equivalent to
public liability claims in the CRU ¬gures. The former di¬erence is explicable by
reference to improvements in workplace safety, and to decline in high-risk manu-
facturing industry and growth in the service sector. There is no obvious explana-
tion for the latter di¬erence, although some would probably see it as evidence of
the growth of the ˜compensation culture™ (7.7).
It is worth noting that public liability has been the only area of major relative
growth in tort claiming since the 1970s. It is true that the number of medical neg-
ligence claims has grown greatly in the past 20 years (8.3.3), but such claims still
represent only around 1% of tort claims. It is also worth noting that the largest
absolute increase has been in road accident claims, which have increased in relative
terms (from around 41% to around 53%) and so have increased in absolute
numbers by at least three times since the 1970s.
In 2000 it was estimated by a claims management company that there
were 11.2 million personal injury accidents in the UK each year, and that
2 million injured people blamed someone else. On the basis that 350,000 tort
claims are made each year, the company estimated a potential untapped market
of more than 1.5 million tort claims per annum.21 But in the light of the CRU

19 To be absolutely precise, 2,538 (0.3%) of the registered cases and 931 (0.1%) of the recorded set-
tlements resulted in ˜no liability™. The reason why the ¬gure for recorded settlements is higher than
that for cases recorded appears to be that the latter is in¬‚ated by double-counting as a result of the
recording of both interim and ¬nal settlements in some cases. Note too that cases not caught by
the recoupment schemes do not appear in the CRU ¬gures.
20 Pearson Report, vol. 2, table 11.
21 Department for Constitutional A¬airs, The Report of the Lord Chancellor™s Committee to Investigate
the Activities of Non-Legally Quali¬ed Claims Assessors and Employment Advisers (2000), para. 68.
206 Chapter 8

¬gures, if the estimate of 2 million potential tort claims a year is anywhere near
correct, the untapped market is considerably smaller than this. Perhaps the esti-
mate of potential tort claims should be much higher. But there is really no way
of knowing.


8.2 Why do people (not) make tort claims?
8.2.1 Some research ¬ndings
In newspaper reports of tort litigation, tort claimants are often quoted as saying
things like, ˜I didn™t really do it for the money, although that will obviously help™.
But what do we actually know about why people make personal injury tort claims?
In the 1990s and early 2000s several British research projects focused on medical
negligence claims.22 This is interesting in its own right. It is, perhaps, a re¬‚ection
of the fact that many people would see the use of the tort system as more prob-
lematic in this context than in other areas such as road and work accidents. Suing
a doctor may be seen as a ˜betrayal™ of the relationship of trust that ideally exists
between medical practitioner and patient. It may also be seen as an attack on that
most sacred of British institutions, the NHS. There have also been two more
general British studies of legal claiming.23 A striking result of such research is that
for very many claimants, obtaining compensation is not the primary reason to
make a claim.24 Other important motivations in the context of medical negligence
are: to prevent the same thing happening to other people; to obtain an explana-
tion of what went wrong or an apology; and to force an individual or organisation
to take responsibility and be held accountable for what happened. Whether the
tort system is an e¬ective or e¬cient way of achieving such goals is another matter,
which is considered in more detail in chapter 17. Nevertheless, explanation and
accountability are recurrent themes in lay attitudes to tort litigation and often
appear, for instance, in anecdotal accounts of why actions against the police have
increased greatly in recent years. However, it is perhaps unlikely that such motiva-


22 C. Vincent, M. Young and A. Phillips, ˜Why Do People Sue Doctors? A Study of Patients and
Relatives Taking Legal Action™ (1994) 343 The Lancet 1609; H. Genn, ˜Access to Just Settlements:
the Case of Medical Negligence™ in A.A.S. Zuckerman and R. Cranston eds., Reform of Civil
Procedure: Essays on ˜Access to Justice™ (Oxford, 1995); S. Lloyd Bostock, ˜Calling Doctors and
Hospitals to Account: Complaining and Claiming as Social Processes™ in M.M. Rosenthal,
L. Mulcahy and S. Lloyd-Bostock eds., Medical Mishaps: Pieces of the Puzzle (Buckingham, 1999);
Department of Health, Making Amends: A Report by the Chief Medical O¬cer (2003), 75.
23 National Consumer Council, Seeking Civil Justice (1995); H. Genn, Paths to Justice: What People
Do and Think about Going to Law (Oxford, 1999).
24 A 2003 follow-up to the Genn, Paths to Justice survey showed that 76% of respondents experi-
encing an injury/work-related ill-health problem who did something to resolve it gave a money-
related objective as the reason. The equivalent ¬gure for those with medical-negligence problems
was 3%: P. Pleasence et al., ˜Causes of Action: First Findings of the LSRC. Periodic Survey™ (2003)
J. of Law and Society 11, 26“7. The survey reported in Department of Health, Making Amends
revealed that only 15% of even the most seriously injured claimants said that ¬nancial compen-
sation was the most appropriate remedy.
Claims and claimants 207

tions play as great a role in the great bulk of straightforward road and work acci-
dent cases.25
Equally important is why people who, in theory at least, could make a tort
claim do not do so. We know, for instance, that only a small proportion of cases
of medical negligence result in a tort claim. In the Paths to Justice study26 more
than one third of respondents who experienced a ˜justiciable™ injury or work-
related ill-health problem27 serious enough to require a visit to a hospital, doctor
or dentist, did nothing to try to ˜solve the problem™.28 Amongst those who took
some step, 39% sought advice, 28% talked to ˜the other side™, 14% threatened legal
action, 8% ˜went to court™ or started a court action and 1% went to mediation or
conciliation.29 The main reasons given for doing nothing were that there was ˜no
dispute™ or ˜no-one was to blame™ (57%), the problem was not thought very
important (17%) and the su¬erer thought that nothing could be done about it
(10%). Only 1% of respondents said that they did nothing because they were too
scared, or because it would cost too much, or because it would damage their rela-
tionship with the other side.

8.2.2 Alternative remedies
If the tort liability system worked as, in theory, it should (that is, if people su¬ering
personal injury or property damage generally recovered damages where the loss
su¬ered was the fault of someone else), we would expect to ¬nd claims for damage
to property as a result of road accidents far exceeding claims for personal injuries.
Although no precise ¬gures are available, it has been estimated that road accidents
causing only property damage are probably six times as frequent as those causing
personal injuries, however slight. And the ¬gure for accidents involving only private
cars is estimated to be even higher “ some 7.7 times as many as personal injury
accidents.30 Property damage amounting to many millions of pounds each year is


25 In the Genn, Paths to Justice survey, no respondent who experienced accidental injury cited
˜obtaining an apology™ as a reason to claim. About 6% referred to the desire to prevent the same
thing happening again to someone else. Genn comments: ˜This may re¬‚ect the high number of
work accidents and work-related illnesses in the sample™ (185).
26 For a theoretical/anecdotal discussion of this issue see S.L. Brodsky et al., ˜Why People Don™t Sue:
A Conceptual and Applied Exploration of Decisions Not to Pursue Litigation™ (2004) 32 J. of
Psychiatry and Law 273.
27 ˜Justiciable™ problems were de¬ned as those raising legal issues.
28 In a follow-up study, 40% of respondents with injury/work-related ill-health problems did
nothing. Of these, around 50% said that the problem was not regarded as involving a dispute, or
was not thought to be very serious: Pleasence et al., ˜Causes of Action™, 25.
29 Genn, Paths to Justice, 52.
30 Road Research Laboratory (RRL), LR 79 (1967). In 2002 the o¬cial statistics as to the costs of road
accidents were calculated on the basis that there were about 6.7 damage-only accidents for every
injury accident: Highway Economics Note No. 1 (2002), para. 19. It has been estimated that 55%
of motorcycle accidents involve injury to the rider: Transport and Road Research Laboratory
(TRRL) Report CR 146 (1990). It is also estimated that one in ¬ve injury accidents are not
reported to the police; but nothing is known about what proportion of damage-only accidents are
reported.
208 Chapter 8

also caused by ¬res. In fact, however, except in the road accident context, tort claims
for property damage alone are rare.
Even if we con¬ne our attention to personal injury accidents, there are large
numbers which scarcely ever ¬gure in the tort scene at all. In particular there are
accidents in the home. Home accidents cause at least as many deaths as road acci-
dents, and it has been estimated that about 3 million people injured each year in
British homes require medical treatment “ many more than in the case of people
injured on the roads.31 The personal injury survey conducted for the Pearson
Commission found that 27% of all injuries occurred within the home.32 Nobody
can be sure what proportion of accidents in the home is due to fault,33 or whether
this proportion is anything like the proportion of road and industrial acci-
dents due to fault. No doubt it is probable that more home accidents are due to the
fault of the victim,34 in which case there could be no tort liability. But such evi-
dence as there is suggests that a considerable proportion of home accidents are due
to ˜fault™ at least in the sense that they could have been prevented by due care on
the part of someone other than the victim, or by better buildings or design etc. For
example, between 1981 and 1984 there were between 3,300 and 3,600 ¬res started
in upholstered furniture; about 150 people died and 1,000 were injured each year
in such ¬res. The design of furniture is crucial to ¬re-resistance; but also about
half the ¬res were started by cigarettes and so could, in many instances, probably
have been prevented by the exercise of more care.35 One survey estimated that one-
third of accidents to young children at home could have been prevented by greater
care.36 In this light, the Pearson Commission™s estimate that rather under a ¬fth of
home accidents could have been due to fault on the part of someone other than
the victim seems somewhat low, but it still amounts to about 8% of all accidental
injuries.37
A US survey (the Harvard Medical Practice Study)38 produced revealing statis-
tics about medical misadventure. It was estimated that about 27% of injuries to


31 Department of Trade and Industry, Home Accident Surveillance System, 20th Annual Report
(1996). In 1996, 33% of all injuries requiring medical treatment were the result of accidents in the
home; 25% are the result of work accidents; and only 11% of road accidents. In 1990, about 700
people died as a result of ¬res attended by ¬re brigades, and 12,000 were injured. Of these, some
500 fatalities and 8,500 non-fatal injuries were the result of ¬res in the home: National Audit
O¬ce, Fire Prevention in England and Wales (HC 318, 1992“3). See also 1.4.1 nn. 23 and 24 and
text.
32 Pearson Report, vol. 2, para. 326.
33 One recent estimate is 0.5%: R. Lewis, ˜Insurance and the Tort System™ (2005) 25 LS 85, 91 n. 30.
34 E.g. with knives, ladders and so on.
35 Hansard written answer (Michael Howard) HC Debs, vol. 100, cols. 467“8 (1 July 1986).
36 Accidents in the Home (London, 1964), 8.
37 Pearson Report, vol. 2, para. 326. In another survey, 17.6% of home accidents were blamed by the
victim on someone else: S.B. Burman, H.G. Genn and J. Lyons, ˜The Use of Legal Services by
Victims of Accidents in the Home: A Pilot Study™ (1977) 40 Modern LR 47, 51“5.
38 The results of this study are summarized and discussed by D.R. Harris, ˜Evaluating the Goals of
Personal Injury Law: Some Empirical Evidence™ in P. Cane and J. Stapleton eds., Essays for Patrick
Atiyah (Oxford, 1991), 289¬.
Claims and claimants 209

hospital patients resulting from medical intervention were due to negligence; but
also that only one in eight of the victims of such injuries made a tort claim, and that
only one in sixteen received any damages.
It is clear from the ¬gures alone that the incidence of actual claims for tort
damages is a¬ected by factors other than the existence of theoretical liability,
including the existence of other and more satisfactory forms of compensation,
such as personal property or ¬re insurance. Nobody is likely to bring an action
for damage caused by ¬re when an easily settled claim can be made against an
insurance company.39 Even in personal injury cases, the fact that (emergency)
medical care is typically obtained free of charge under the NHS, that many
employers will pay wages or salary for a reasonable period of absence due to sick-
ness or injury, and that social security bene¬ts are often available to injured
persons, probably means that very many minor cases are never made the subject
of a tort claim.
The incidence of tort claims is also profoundly a¬ected by the possibility of actu-
ally enforcing a judgment against the defendant. Unless the defendant is insured,
or is a substantial corporation, no tort claim is likely to be made in practice. This,
no doubt, places a large majority of home accidents beyond the pale of tort law. The
problem is not that the person at fault is likely to be a member of the same family
as the person injured; the law does not prevent a person suing a member of their
own family in tort. Rather, the problem is that the person at fault in the home may
well not be insured against liability to other members of the family.
In the Pearson survey, although about 42% of tort payments were made in
respect of work injuries, such injuries accounted for less than 25% of all injuries.
Similarly, road accident victims obtained about 45% of all tort payments, but
accounted for less than 10% of all accidents. On the other hand, 27% of all the
injuries occurred at home, but those in this category received less than 1% of all
tort payments. These ¬gures show that it is wrong to think of the tort system as
being in practice a fault system; it is really a fault-cum-insurance system, because
the chances of obtaining damages depend on the availability of insurance just as
much as on the existence of fault.

8.2.3 Claims consciousness
Another important but ill-understood factor a¬ecting the incidence of tort claims
is that generally known as ˜claims consciousness™. Some people are more ˜claims
conscious™ than others, and so they are more likely to think of making a claim than
others. A national survey in Britain found that only one in three of road accident
victims, one in four of work accident victims, and one in ¬fty of other accidents,
consulted a solicitor.40 It was also found that women are less likely to consider

39 In theory, the insurance company could sue the person, if any, whose fault caused the ¬re to
recover amounts paid out to the policy-holder under the doctrine of subrogation, but in practice
such actions are rarely brought: 15.3.
40 Harris 1984 Survey, 65.
210 Chapter 8

making a claim,41 or to seek legal advice, than men; that children and the elderly are
less likely than those in other age groups to do so; and that those in higher socio-
economic groups are less likely to do so than those in lower groups.42 The Pearson
personal-injury survey showed that only 11% of those injured took any steps at all
towards making a claim for damages.43 It also found that 19% of those who thought
that someone might be held responsible for their injuries made no claim because
they did not know how to claim or even that they could claim.44 A large US survey45
produced comparable results despite the fact that the USA is widely regarded as a
highly litigious society.46 The Harvard Medical Practice Study found that only one
in eight victims of medical negligence in New York State hospitals made a tort
claim, which is a surprisingly low ¬gure for a group of victims who might be expec-
ted to have a high level of claims consciousness.47
At the most general level, claims consciousness is related to cultural attitudes to
law and the legal system. One writer has said that ˜the American links adversity with
recompense while the Englishman or woman accepts adversity as a routine part of
life™.48 Many people would argue that Britain is a more litigious society today then
ever before; but there is no reliable evidence on the basis of which such a claim can
be assessed. For instance, although we know that the number of medical negligence
claims has risen steadily over the past 25 years or so, there is no way of knowing to
what extent the increase is the result of increased claims consciousness and to what
extent it can be explained by other factors, such as changes in the law, increased
medical activity, and advances in medical technology that enable seriously disabled
people to be kept alive. Interestingly, one study found that justiciable problems
relating to injury and medical negligence are amongst those about which people
are most likely to do nothing at all.49 On the other hand, it seems intuitively plau-
sible to think, given the obsession of the popular media with legal matters, that

41 Harris 1984 Survey concludes that the group of victims who give no thought to claiming is ˜very
large™: 71; see also 49, 61.
42 Ibid., 53, 63, 68. This somewhat surprising result is perhaps explained by the fact that people in
higher groups are more likely have to a greater proportion of their ¬nancial losses met from other
sources, and so do not need to make a tort claim to recover such losses.
43 Pearson Report, vol. 2, para. 389. In the Genn, Paths to Justice survey, 14% of respondents with
injury/work-related ill-health problems threatened legal action and 8% ˜went to court or started
a court case™ (¬g. 2.18).
44 Pearson Report, vol. 2, table 84. In the Genn, Paths to Justice survey, 10% of respondents with
injury/work-related ill-health problems took no action to try to solve the problem because ˜they
did not think anything could be done™ (¬g. 2.19).
45 For details see Harris 1984 Survey, 296“8.
46 For an exploration of litigiousness in the UK, the USA and Germany see B.S. Markesinis,
˜Litigation Mania in England, Germany and the USA: Are We So Very Di¬erent?™ [1990]
Cambridge LJ 233. See also P.S. Atiyah, ˜Tort Law and the Alternatives: Some Anglo-American
Comparisons™ [1987] Duke LJ 1002; H.M. Kritzer, ˜Propensity to Sue in England and the United
States of America: Blaming and Claiming in Tort Cases™ [1991] 18 Law and Society 400; S. Lloyd-
Bostock, ˜Propensity to Sue in England and the United States of America: The Role of Attribution
Processes. A Comment on Kritzer™ [1991] 18 Law and Society 428.
47 Harris, 1884 Survey, 300“1.
48 Kritzer, ˜Propensity to Sue™, 422. See also ibid., 420“1.
49 Genn, Paths to Justice, 250.
Claims and claimants 211

people generally are more aware of law and legal processes, and put more faith in
them as solutions to social problems, that they did 30 or even 20 years ago.
At the same time, ignorance of the law is probably an important factor
in many cases in explaining why many injured people never think of making a
claim.50 No doubt many people™s image of the law (if they have one) is as something
meted out by magistrates; some are probably unaware of the existence of the civil law
(except, perhaps, the law of defamation) as opposed to the criminal law. For example,
a survey by the Consumer Council in 1968 estimated that only 22% of people knew
that a retailer is legally liable to the buyer (in contract) for damage or injury caused
by defective goods sold by it.51 It may be, too, that some people are unaware of the
role of liability insurance in meeting claims arising, for example, out of road acci-
dents. A person who thinks that the defendant personally will pay any damages
awarded is perhaps unlikely to think of suing if the negligent person was a member
of their own family, or a friend, or perhaps even a long-term professional adviser such
as a GP. Also, to many people suing another would seem an aggressive act out of place
in close relationships.52 The Pearson Commission found that 10% of people who
thought that someone else might be responsible for their injuries did not make a
claim because it would have been against a family member or friend.53
Furthermore, some types of accidents (e.g. road and work accidents) are more
likely to lead to claims being made than others (e.g. leisure and domestic accidents)
partly because people probably associate ˜the law™ more with some types of accidents
than with others.54 For example, few people injured in a private house would think
of suing the occupant for negligence, even though this kind of liability may well be
covered by a householder™s comprehensive insurance policy. A study of home acci-
dents in Bristol in 1976 con¬rmed the great reluctance of the victims of such acci-
dents to make claims. Although there were a number of serious injuries, only one
person in this study of 905 cases had actually taken steps to claim compensation;
only two sought legal advice; and only seven even considered making a claim.55
Claims consciousness may also be greater in relation to accidents that occur in
public (and are, therefore, more likely to be witnessed and reported) than in rela-
tion to domestic accidents, for example.56 This may help to explain why about 12%
of personal injury claims fall within the broad description of ˜public liability™: many
such claims will arise out of accidents in public places as a result, for instance, of
tripping and falling on uneven pavements. On the other hand, claims consciousness

50 ˜A clear message that emerges from the study is . . . the pervasive lack of the most rudimentary
knowledge about legal rights and procedures for enforcing or defending rights™: Genn, Paths to
Justice, 255.
51 See A.L. Diamond, ˜Codi¬cation of the Law of Contract™ (1968) 31 Modern LR 361, 372.
52 But in the Genn, Paths to Justice survey, only 1% of respondents with injury/work-related illness
problems said that the reason the did nothing at all about the problem was the risk of damaging
their relationship with the ˜other side™.
53 Pearson Report, vol. 2, table 84.
54 Harris 1984 Survey, 69“70.
55 Burman, Genn and Lyons, ˜The Use of Legal Services by Victims of Accidents in the Home™.
56 See Harris 1984 Survey, 67
212 Chapter 8

in respect of diseases is likely to be lower than in respect of traumatic injuries, if only
because the tort system compensates relatively very few disease victims.57 Important
in overcoming ignorance about the possibility of legal claims are the activities of
bodies, such as trade unions and Citizens™ Advice Bureaux,58 which can provide
injury victims with advice soon after an accident.
Claims consciousness is likely to be higher in relation to accidents in which
many people are killed or injured (˜mass torts™, such as a rail or air crash or a ¬re in
a public place), or in respect of products (especially drugs) the use of which has had
adverse e¬ects on large numbers of people.59 The number of claims made and the
amounts paid out in such cases (˜group claims™) can be very large indeed. For
example, there were more than 250,000 claimants world-wide in the Dalkon Shield
contraceptive litigation. Over £100 million was paid out in compensation follow-
ing the Piper Alpha oil-rig disaster and it has been suggested that claims against Pan
Am™s insurers in respect of the Lockerbie bombing in 1988 might ¬nally total more
than £500 million. The world-wide Dow-Corning settlement package for women
who had silicone breast implants amounts to more than US$3 billion. A UK
government-funded compensation scheme for miners su¬ering from work-related
lung disease was set up in 1999 worth at least £1.5 billion. It is anticipated that the
total bill for compensating victims of asbestos-related diseases in the UK may be in
the region of £8 billion “ and perhaps much more.
Mass torts have a number of features that will tend to heighten claims con-
sciousness. First, the incidents which give rise to them typically attract a great deal
of attention from the media, and the media may be used to advertise for claimants.
More generally (as already suggested), the media has played an important part in
recent years in raising the general level of personal injury claims consciousness in
the community, even in respect of torts a¬ecting only one person. It is probably
true that many more people today would consider the possibility of making a tort
claim if they su¬ered personal injury or illness than would have done so 30 or even
20 years ago. Secondly (although this is probably less true now than it was 10 or 20
years ago), whereas personal injury actions brought by single claimants may be
handled by solicitors with limited expertise in or experience of personal injury lit-
igation, multi-claimant actions will almost certainly be handled by personal injury
specialists who are able to identify victims and to suggest the possibility of making
a claim. Thirdly, large-scale accidents are usually followed by some sort of public
inquiry to investigate what happened.
Another factor in¬‚uencing claims consciousness may be that many people do
not appreciate that a tort claim can be made and settled by negotiation. The public

57 J. Stapleton, Disease and the Compensation Debate (Oxford, 1986), 101“4.
58 But for a recent negative assessment of the role of CABx see Genn, Paths to Justice, 256.
59 But it has also been claimed that there is a signi¬cant pool of cases of work-related, asbestos-
induced diseases that are not pursued at law: W.L.F. Felstiner and R. Dingwall, Asbestos Litigation
in the United Kingdom (Oxford, 1988). The passage of 20 years since this research was done may
have changed the situation somewhat. Asbestos-related diseases probably account for a signi¬cant
proportion of disease-related tort claiming.
Claims and claimants 213

image of the ˜law™ seems to be con¬ned to what happens in courts “ and this is not
surprising since the public tends to think of the law mainly as the criminal law, and
criminal cases cannot be ˜settled™ in the way that civil claims are.60 Even in the case
of defamation actions, some of which receive considerable publicity, the distinction
between settling a claim and trying it may not be easy for the non-lawyer to discern.
If people assume that a tort claim necessarily involves a judicial hearing, fear of the
cost of such a hearing, as well as of the burden of giving evidence, may deter them
from making a claim.61 In industrial cases there is often a real fear of causing trouble
to workmates by requiring them to give evidence against their employer.62
Finally, many people are reluctant to consult solicitors; and contrary to what
might at ¬rst be expected, this reluctance appears, at least in relation to obtaining
compensation for personal injuries, not to be con¬ned to (or even more common
amongst) lower socio-economic groups.63 In the Paths to Justice Survey, only 32% of
respondents with an injury/work-related illness problem who sought advice went in
the ¬rst instance to a solicitor; but another 50% went to a solicitor as their second
source of advice.64 In the Pearson Commission personal injury survey, a substantial
proportion of those injured who sought no legal advice or redress said that this was
because they did not want to make a fuss, or that it was too much trouble.65 The
Royal Commission on Legal Services found that a third of those surveyed who had
a problem about which they felt at some stage that a solicitor™s help or advice might
have been useful did not consult a lawyer because of concern about costs.66
In cases where some consideration is given to making a claim, factors such as
perceived di¬culties in obtaining evidence and fear of legal expenses have found
to be important in explaining why claims are not made in the ¬rst place or are aban-
doned once made.67 Fear of legal expenses might itself, to some extent, be a product
of ignorance. A survey in 1992“3 of 650 accident victims who recovered compen-
sation found that in three out of every four cases the claimant did not have to pay
any legal costs “ the bill was met by legal aid, the defendant(™s insurer) or a trade
union.68 Yet the Harris 1984 Survey found that even amongst those who consulted
a solicitor, only one in four knew of the legal advice scheme and less than one half


60 Although, of course, the police can decide not to prosecute; and plea bargaining is not totally dis-
similar to settlement of civil cases out of court. But plea bargaining is very controversial in a way
that settlement out of court is not, and this fact supports the statement in the text.
61 ˜There is a widespread perception that legal proceedings involve uncertainty, expense and poten-
tial long-term disturbance and that only the most serious matters could justify enduring those
conditions™: Genn, Paths to Justice, 254.
62 E.A. Webb, Industrial Injuries: A New Approach (Evidence of the PO Engineering Union to the
Pearson Royal Commission, London, 1974), 8.
63 Harris 1984 Survey, 53, 63, 68.
64 Genn, Paths to Justice, 128. Other ¬rst sources of advice were trades unions (18%), insurance com-
panies (15%), police (15%) and CABx (5%).
65 Pearson Report, vol. 2, table 84.
66 Cmnd 7648“1 (1979), vol. 2, table 8.56.
67 Harris 1984 Survey, tables 2.12, 3.12; Genn, ˜Access to Just Settlements™, 401“2.
68 Law Com. No. 225, How Much is Enough? (1994), 149.
214 Chapter 8

knew of the legal aid scheme.69 On the other hand, a Consumers™Association survey
in 1997 found that 73% of their (inevitably middle-class) members said that they
had heard of conditional fees.70 Since then, legal aid has been abolished for most
personal injury claims, the bulk of which are now funded by some form of insur-
ance or by lawyers operating on a no-win, no-fee basis. There is some recent evi-
dence that fear of costs is not a major barrier to claiming.71
Although the evidence on claims consciousness is slight and di¬cult to inter-
pret, there is a su¬cient core of established fact to make it certain that the presence
and strength of claims consciousness is an important factor in determining the
number of potential tort claims which are, in practice, pursued. A survey conducted
in 1981 examined a scheme under which lea¬‚ets were distributed and posters dis-
played in hospitals, doctors™ surgeries and so on o¬ering a free interview with a
solicitor. It was found that as a result of the scheme, many accident victims who
would not otherwise have thought of making a tort claim or who would not have
consulted a solicitor, sought legal advice. The largest group using the scheme were
victims of accidents su¬ered otherwise than on the road or at work, and 42% of
users said that they had not thought of making a claim before they saw a lea¬‚et or
poster advertising the scheme. Furthermore, 80% of free interviews resulted in
some action being taken by the solicitor to obtain compensation.72
These facts are not of merely academic interest, for if one of the main purposes
of the tort system is to compensate those su¬ering injury from another™s fault, then
the system does not work well to the extent that people who have good tort claims
do not in fact make them. It must, of course, be admitted that this criticism is not
con¬ned to the tort system. The social security system does not in practice reach all
those who are entitled to social security bene¬ts, particularly income-support
bene¬ts on which many of the very poorest in society depend.


8.3 Particular types of claims
8.3.1 Road accidents
According to ¬gures published by the CRU, in 2003“4 and 2004“5 there were more
than 400,000 successful tort claims for personal injury and death arising out of road
accidents.73 The Pearson Commission estimated that tort compensation is recov-
ered in respect of only about one-quarter of injuries and deaths resulting from road


69 Ibid., 67; many of those who have heard of legal aid are very vague about how to obtain it: see
B. Abel-Smith, M. Zander and R. Brooke, Legal Problems and the Citizen (London, 1973), 194“5.
70 About conditional fees see 10.2.
71 DCA, E¬ects of Advertising in Respect of Compensation Claims for Personal Injuries (March
2006), para. 2.4.9.
72 H. Genn, Meeting Legal Needs? An Evaluation of a Scheme for Personal Injury Victims (Oxford,
1982).
73 As we noted in 1.4.1, only about 280,000 people were recorded as having su¬ered death or injury
in road accidents in 2004. The di¬erence between this and the CRU ¬gures suggests that the road
accident statistics give a very misleading picture.
Claims and claimants 215

accidents. It is very probable that the proportion of those who obtain damages is
higher in cases where the injuries are more serious. According to the Commission,
in fatal cases damages are recovered in about one case in two; and in some 96% of
cases where a tort claim is made, some payment ensues.74 If these Pearson estimates
are correct, they would suggest that each year around 2 million people may su¬er
personal injury or death in road accidents, and that between 400,000 and 500,000
road accident tort claims are made each year. On the other hand, the facts that the
number of successful tort claims has increased threefold since the 1970s and that
road accident claims now represent a larger proportion of successful claims than
they did in the 1970s might support the conclusion that a much higher percentage
of road accident victims now recover tort compensation than did 30 years ago.
Even so, there are at least two reasons why we might expect that a signi¬cant pro-
portion of those injured and killed on the roads would not recover tort compensa-
tion: ¬rst, the requirement of proof of fault; and, secondly, the fact that the
insurance system is far from being comprehensive. If we take the fault factor ¬rst,
we cannot tell from looking at the ¬gures what proportion of accidents was caused
by someone™s fault, but we can make some reasonable guesses about some types of
accident. In 2004 out of a total of 207,410 recorded road accidents involving per-
sonal injury, almost 62,000 involved only one vehicle; and of these accidents, more
than 1,300 resulted in fatalities and about 12,000 resulted in serious injury.75 These
¬gures include accidents in which one or more pedestrians were injured; but in
accidents involving no pedestrian, about 40,000 vehicle users were injured (some
6,600 seriously) and 820 were killed.76 About half the motorcycle accidents in
1987“8 involved no vehicle or object other than the cycle. One in ten involved a
roadside object.77 Some of these accidents may have been due to the fault of a third
party who was not directly involved in a collision; and in addition to pedestrians
injured in single-vehicle accidents, some of the victims would have been passengers
who might have recovered tort damages against their drivers. But single vehicle
accidents must account for a substantial proportion of those killed and injured in
road accidents in respect of which no tort compensation is recovered. It is perhaps
signi¬cant in this context that about 21% of drivers and motorcycle riders who die
in road accidents have blood alcohol levels above the legal limit;78 it would be sur-
prising if most of these were not at least partly to blame for the accidents in which
they died.79
Then there are accidents caused by sudden vehicle defect, such as tyre blow-outs,
sudden brake or steering failure, or the like. There has been much controversy


Pearson Report, vol. 2, paras. 199“201. See also Harris 1984 Survey, ¬gs. 2.8, 2.9.
74
75 Department for Transport, Road Casualties in Great Britain 2004, table 19.
76 Ibid., table 23.
77 TRRL CR 146 (1990).
78 TRRL Report RR 266 (1990).
79 A high proportion of pedestrians killed and injured on the roads are intoxicated: The Times,
7 December 1992 (reporting ¬ndings of the RRL).
216 Chapter 8

about the extent to which vehicle defects cause or contribute to road accidents; but
such data as we have suggests that less than 10% of road accidents are primarily the
result of vehicle defects.80 One problem from our point of view is that vehicle
defects are often attributable to the fault of the owner of the car in not maintain-
ing it properly. In this event there could be tort liability, and although the negli-
gence would not be in driving but in maintaining the vehicle, it is covered by
compulsory insurance. On the other hand, proving negligence in such a case might
be very di¬cult. Accidents due to sudden illness or death of the driver, which would
also fall outside the tort system unless the driver had reason to know there was a
likelihood of such attacks, are not common, but have been estimated to account for
between 0.1% and 2% of all road accidents.81
In addition to accidents that occur without fault on anyone™s part, it must also be
remembered that there may be many accidents which, though caused by someone™s
fault, cannot be proved to have been so caused. The particular problem of the hit-
and-run driver is now largely taken care of by the Motor Insurers™ Bureau,82 but
proof that someone was to blame for the accident is still required. If, there are no
witnesses of the accident, and the physical facts (such as the position of the vehicles
etc.) do not themselves amount to evidence of negligence, the claimant will fail. In
practice, this simple lack of evidence is a very common problem.
The second factor mentioned above was insurance. We shall look at the insur-
ance system in detail later, but there are many road accidents which are the fault of
persons who are not required to be “ and usually are not “ insured against tort lia-
bilities, such as pedestrians and cyclists. Then there are accidents caused by animals
on the roads. One estimate is that dogs are involved in some 500“700 personal
injury accidents per year.83 Another estimate is a good deal higher, and suggests that
about 2,400 road injuries a year are caused by accidents involving dogs.84 How
many of such accidents are the fault of the dog owner is unknown. Dog owners are
sometimes comprehensively insured, and such insurance covers third-party liabil-
ity, but it is thought that not many owners would be so covered.

8.3.2 Industrial injuries and illnesses
Although many industrial accidents are required by law to be reported, it is
well known that the statistics are patchy and not always very reliable.85 The


80 See TRRL Report LR 498 (1972), para. 196 (2“3%); Road Accidents Great Britain 1975 (HMSO,
1977), xiv (8%).
81 Medical Factors and Road Accidents RRL Report LR 143 (HMSO, 1967). See also Medical Aspects
of Fitness to Drive (1968, published by the Medical Commission on Accident Prevention); L.G.
Norman Road Tra¬c Accidents, Epidemiology, Control and Prevention (Geneva, 1962).
82 9.8.
83 Law Com. No. 13, Civil Liability for Animals (1967), paras. 36“8.
84 Pearson Report, vol. 2, para. 294.
85 The Health and Safety Commission once estimated that about a third of reportable non-fatal
injuries are in fact reported: Annual Report 1991“2. See also S. Dawson et al., Safety at Work: The
Limits of Self-Regulation (Cambridge, 1988), ch. 2.
Claims and claimants 217

number of people killed at work has fallen dramatically in the last 30 years or so,
mainly as a result of changes in patterns of employment away from high-risk
industries.86 In 1961, 1,228 people were killed at work while in 2004“5 the
corresponding ¬gure was 220.87 The number of non-fatal injuries has appar-
ently not fallen as much. The Pearson Commission estimated that about 680,000
employees and 40,000 self-employed people were injured at work each year;88
whereas there were about 151,000 reported non-fatal work injuries to employees
in 2004“5.89 According to the Labour Force Survey, there were about 363,000
reportable injuries in 2003“4. There are no reliable ¬gures in respect of occupa-
tional disease, but one estimate is that around 5,600 deaths a year result from
workplace exposure to carcinogens;90 and more recent estimates put asbestos-
related deaths in Britain (most of which result from workplace exposure) at
around 3,500 a year. The 1990 Labour Force Survey found that about 6% of
adults who have ever worked su¬er from illness which they believe to have been
caused or made worse by their work (including past work); about half believe
their illness to have been caused directly by work. The Health and Safety
Commission estimates that in 2004“5, about 2 million people su¬ered from ill-
health that they thought was work-related.
According to the CRU, there are about 250,000 successful workplace personal-
injury and disease claims each year.91 The Pearson Commission estimated that
about 10.5% of those injured at work obtain some tort compensation.92 There is,
however, a widespread view that the proportion is much higher in serious injury
cases93 and this is to some degree con¬rmed by the Pearson Report94 and more
clearly by the Harris 1984 Survey.95 It seems clear that the proportion of successful
claims is a great deal lower than it is in the case of road accidents.96 On the face of
it, this is rather surprising. There are a various factors that might lead to the
assumption that an industrial injury victim has a greater chance of success in a tort
claim; for instance, employers are often ˜strictly liable™; industrial accidents are
probably less likely to occur unwitnessed; trade union advice and assistance is more
likely to help the industrial accident victim. The Harris 1984 Survey also found that
although about the same proportion of road and work accident victims consider


86 The most dangerous industry now is the construction industry.
87 Health and Safety Commission, Health and Safety Statistics 2004/5.
88 Pearson Report, vol. 2, table 29.
89 Reportable injuries are those resulting in an absence of at least 3 days from work.
90 J. Stapleton, Disease and the Compensation Debate (Oxford, 1986), 8. The Health and Safety
Commission puts the ¬gure at between 3,000 and 12,000: Health and Safety Statistics 2004/5.
91 The Pearson Commission™s estimate was 90,000 successful accident claims and about 1,700 suc-
cessful illness/disease claims: Pearson Report, vol. 2, paras. 168 and 180 respectively.
92 Pearson Report, vol. 2, table 14.
93 Evidence of the TUC to the Pearson Commission, para. 97.
94 Vol. 2, paras. 77“8.
95 Harris 1984 Survey, table 2.8.
96 Ibid.: 19% as against 29% for road accidents; and, according to Pearson, about one in eight as
against one in four for road accidents.
218 Chapter 8

making a claim, a smaller proportion of the latter actually seek legal advice.97 One
might have expected fewer road accident victims either to consider making a claim
or to consult a solicitor, if only because many road victims are young children or
elderly persons in retirement who would not su¬er lost earnings, whereas an indus-
trial accident victim is by de¬nition a wage or salary earner. It seems that these
factors must be outweighed by a number of other factors, for example, reluctance
of employees to make claims against their employers; the road accident victim, by
contrast, is less likely to feel reluctant to sue a motorist whom is thought to have
been ˜at fault™. Possibly, the fact that in road accidents the injured person may also
have su¬ered damage to a vehicle makes a claim seem more worthwhile. Such evi-
dence as there is, however, suggests (rather surprisingly) that whether or not the
injured person received sick pay has little e¬ect on the propensity of employees to
claim damages;98 and that ˜road accidents in general appear to result in fewer per-
manent injuries than either work or other accidents do™.99
The Pearson Commission estimated that about one in four road accident
victims obtain some tort compensation. If the correct equivalent ¬gure for work-
place injury and disease victims is (as the Commission suggested) considerably less,
say one in eight, then on the basis of the CRU ¬gure of 250,000 successful claims
against employers each year, we might speculate that around 2 million people su¬er
occupational injury, disease or ill-health each year.
There seems little doubt that a considerable proportion of industrial accidents
that do not lead to any claim are nevertheless due to negligence on the part of
someone.100 The annual Reports of the Chief Inspector of Factories used to contain
an analysis of the cause of all fatal accidents. The proportion of cases in which some
responsibility was attributed to the employer went as high as 61%.101 Some unions
have gone so far as to assert that in industries covered by statutory safety codes, com-
pensation could be recovered in as many as 50% of the cases, though often at a very
unsatisfactory level.102 No doubt there are very many quite trivial industrial acci-
dents in which the victim is only away from work for a few days, and it is not thought
worthwhile to make a tort claim “ particularly if some wages are still being paid. But
it must not be assumed that people do not in fact claim relatively small amounts in
tort actions “ we shall see later that the actual amounts paid over in tort settlements
are usually quite small. So far as industrial diseases are concerned, it is impossible to
estimate what proportion could form the basis of a successful tort action.


Ibid., ¬g. 2.2.
97
98 Ibid.
99 Ibid., 57.
100 Contrast the conclusion of an HSE-commissioned report in 2002 that most compensatable work
injuries enter the tort system: Changing Business Behaviour: Would Bearing the True Cost of Poor
Health and Safety Performance Make a Di¬erence?, Research Report 436/2002.
101 Manufacturing and Service Industries, Report of HM Factory Inspectorate 1977 (HMSO, 1978),
table F.
102 Society of Labour Lawyers, Accidents at Work: Compensation for All (Evidence to the Pearson
Commission, 1974), 7.
Claims and claimants 219


8.3.3 Public liability claims
According to the CRU, public liability claims “ which are roughly equivalent to
occupier™s liability claims arising out of injuries resulting from the use of land “
make up about 12% of all successful personal injury claims. As noted in 8.1.4, this
represents more than a twofold relative increase since the 1970s and a very much
larger increase an absolute numbers. There is little reliable information about such
claims. Most are probably made against local authorities and other public bodies
who are responsible for the maintenance of roads, pavements and other public
spaces. A certain proportion are made against organizers and providers of sporting
and recreational facilities. There is some evidence that the increase in such claims
has resulted in reduced availability and increased price of public liability insurance
in recent years.

8.3.4 Medical injuries
The Pearson Commission found that in England and Wales between 1973 and 1975
there were an average each year of 2,819 deaths from adverse e¬ects of drugs and 77
deaths from ˜complications™ of medical or surgical care. It was estimated that in the
UK there were 24,000 injuries per year caused by the adverse e¬ects of drugs, and
13,000 resulting from medical or surgical complications. Research conducted in
various countries in recent years suggests that perhaps one in ten patients in acute-
care hospitals su¬er ˜avoidable™ mishaps as a result of their treatment and care. It is
notoriously di¬cult to identify the causes of many medical mishaps, but the Pearson
Commission thought that only a minority of the cases of ˜complications™ would be
attributable to negligence.103 The Harvard Medical Practice Study, by contrast, esti-
mated that about 27% of those in the study who su¬ered injuries as a result of
medical intervention were the victims of negligence. Extrapolating the results of this
study to the UK, it has been suggested that ˜about 200,000 adverse events per annum
occur in English hospitals, with around 50,000 being due to negligence™.104
So far as drug-related injuries are concerned, leaving aside mistakes in adminis-
tration, liability for negligent ˜design™ of drugs or for negligent failure to warn of
possible adverse side-e¬ects is extremely di¬cult to establish in most cases, not
only because of di¬culties in proving causation but also because of the existence,
both at common law and under the Consumer Protection Act 1987, of a develop-
ment risk defence; and as a result of the rule that fault is to be judged at the time of
the alleged act of negligence and not in the light of later developments in know-
ledge. Despite a number of much-publicised attempts, tort actions against drug
companies in the UK have been spectacularly unsuccessful. The most notorious
example is the so-called ˜tranquilliser™ or ˜benzodiazepine™ group litigation, on


103 Pearson Report, vol. 2, paras. 233“5.
104 M. Ennis and C. Vincent, ˜E¬ects of Medical Accidents and Litigation on Doctors and Patients™
(1994) 16 Law and Policy 97, 99. See also 1.4.1, n. 25.
220 Chapter 8

which £40 million of legal aid funds were spent for preliminary work before legal
aid was withdrawn and the claims abandoned.105 At the time of writing, a poten-
tially very large number of tort claims are brewing, arising out of use of the arthri-
tis drug Vioxx, after a US jury made a large award to the widow of a Vioxx user for
failure by the manufacturer to warn about known, adverse side-e¬ects of the drug
while at the same time engaging in a vigorous marketing campaign.
The Pearson Commission estimated that each year about 500 medical negli-
gence claims (that is, claims based on alleged negligence by dentists and doctors)
were referred to legal advisers; but 305 of these were subsequently abandoned. In
175 cases (35%) some compensation was paid, in all but ¬ve by way of an out-of-
court settlement. The Commission also found that a relatively high proportion of
medical negligence claims were actually tried or set down for trial. However, unlike
other categories of claim studied, only a minority of the medical negligence claims
that reached trial resulted in the payment of compensation.106 The situation today
is dramatically di¬erent from that in the 1970s. Medical negligence claims against
NHS Trusts are now handled by the NHS Litigation Authority (NHSLA). It received
more than 6,000 new claims in 2004“5.107 On average, only 2.5% of the cases
handled by the NHSLA go to court, and this ¬gure includes settlements made on
behalf of minors, which must be approved by a court. Research conducted in the
1990s suggests that more than half of medical negligence claims are abandoned at
an early stage, 25% are settled and 3% go to trial. Of those that go to trial, about
four in ¬ve succeed.108
The Pearson Commission estimated the amount of compensation paid by the
three medical defence societies (who, at that time, provided insurance for medical
and dental practitioners) to medical negligence claimants annually to be in the
region of £1 million (in 1977 currency values). In 1988 the largest of these societies
(the Medical Defence Union) alone paid out nearly £26 million. An estimate made
in 1989 of the total annual cost of such claims was £75 million. The authors of this
estimate suggest that it re¬‚ected an eightfold increase since the mid-1970s in the
likelihood that a victim of a medical mishap will make a negligence claim, and a
doubling in real terms of the average amount paid in compensation.109 In 1996, the


105 C. Hodges, Multi-Party Actions (Oxford, 2001), ch. 22.
106 Pearson Report, vol. 2, paras. 237“9. A more recent UK estimate is that some payment is received
in 20“25% of medical negligence claims: R. Dingwall, ˜Litigation and the Threat of Medicine™ in
J. Gabe, D. Kellaher and G. Williams eds., Challenging Medicine (London, 1994), 50. The Harvard
Medical Practice Study found that about half of medical negligence claimants recovered some
compensation.
107 National Health Service Litigation Authority, Report and Accounts 2005.
108 H. Genn, ˜Access to Just Settlements: The Case of Medical Negligence™ in A.A.S. Zuckerman and
R. Cranston eds., Reform of Civil Procedure: Essays on ˜Access to Justice™ (Oxford, 1995), 401. Other
research found that less than 20% of medical negligence claims ended in a payment of com-
pensation: Mulcahy, ˜Threatening Behaviour?™, 97.
109 Ibid. For attempts to explain the increase see M.J. Trebilcock, D.N. Dewees and D.G. Du¬, ˜The
Medical Malpractice Explosion: An Empirical Assessment of Trends, Determinants and Impacts™
(1990) 17 Melbourne ULR 539.
Claims and claimants 221

NHS was reported to have paid out £150 million to meet medical negligence
claims.110 In 2004“5 the NHSLA paid out more than £500 million in compensa-
tion in settlement of about 8,400 claims. This represents a seventeen-fold increase
in claims and (making allowance for in¬‚ation) a 125-fold increase in compensa-
tion since 1977. No other area of tort litigation has grown to anything like this
extent in the past 30 years. Nevertheless, medical-negligence claims represent only
about 1% of all successful personal injury claims.

8.3.5 Group claims
Most road, work and medical negligence claims are made by individuals. Much less
common are claims by groups of individuals “ called ˜group™ or ˜multi-party™ claims.
In the UK, such actions date back to the 1980s. Group personal injury claims have
arisen out of large transport accidents, the use of pharmaceutical products and
medical devices, and work-related illnesses and diseases.111 Although uncommon,
such claims tend to attract a lot of media attention, and may involve very large
numbers of claimants and amounts of compensation. Because of the multi-

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