Pages

Accidents Will Happen, Will They? A Compo Culture article I wrote in 2002


The forthcoming introduction of a new body to decide on the levels of compensation in personal injury cases is an attempt by the government to eliminate the “compo culture” said by some to exist in Ireland today. It may result in a reduction in the size of awards that injured people receive.

Accidents will happen, as they say. And when they do what is our first impulse? To admit our part in the incident and deal with the consequences, or to lay blame at someone else’s door and sue?

A bizarre case involved a beauty consultant who was cleaning her £10,000 diamond engagement ring in the finger bowl of a Chinese restaurant after her aromatic duck, only to discover much later that the bowl had been cleared away before she had reclaimed the ring. In his verdict on the case, Judge Liam Devally said that the only negligence he found was “on the part of the plaintiff in leaving a valuable ring in a finger-bowl for so long, and in failing to retrieve it and put it back on her finger." Dismissing the action, Judge Devally said he had not been satisfied that the restaurant was liable for the woman’s loss.

According to some commentators, when such things happen far too many of us think immediately of compensation, of getting someone else to “pay for it” – either our fellow citizens, or private companies where we work or do business, or indeed the State. The same commentators say we have created a “compo culture”, such that instead of working things out in a reasonable manner among ourselves, we all rush off to our lawyers, insurance companies, doctors, and the courts. It has reached a stage where accidents are fabricated in order to make cases.

The employer’s group blame a “malaise in society”, involving opportunistic, trivial and exaggerated claims for compensation being made without there being an adequate system in place to weed out the spurious claims, and deal with genuine cases in a fair and equitable manner.

A recent unsuccessful case involved a woman looking for compensation from a McDonalds outlet after she damaged her teeth while drinking a Coke. She claimed to have bitten into a nozzle from the drink’s dispenser machine that had somehow got into her cardboard cup. A dentist pointed out to the court that when we drink from such a container our lips are almost closed, and he found it difficult to see how the nozzle could have got into the woman’s mouth. The judge concurred, saying that he also found it difficult to accept that the woman could bite the nozzle without first realising that it wasn’t ice, and he dismissed the case.

Another fast food outlet recently foiled a fraudulent claim when it produced video evidence showing the plaintiff and two friends splashing water on the floor just prior to the alleged accident.

Tony Briscoe of the employer’s body, IBEC, acknowledges that the number of such claims against companies has gone down of late, reflecting growing safety awareness and a decrease in the number of accidents, but he is very concerned that, despite this, the cost of claims to companies is still “going through the roof”.

IBEC estimates that the overall cost of injury compensation in 2002 will be more than €2 billion, of which nearly half is going on legal costs alone, even though only about 1% of cases actually reach the courts. In a recent analysis of third–party claims in England and Ireland it was found that in Ireland “on average, claims paid were over twelve times higher than those experienced in England”.

Briscoe refers to our personal liability system as being overly generous, both in terms of our court awards, and the fact that our claims take much longer to settle. The latter, he says, not only increases legal costs, but has a negative impact on rehabilitation, on sufferers getting better. “The longer somebody’s waiting to obtain compensation facing into an adversarial system the less encouragement there is for rehabilitation,” he says. The British Medical Association has indicated that the longer someone is out of work in these instances, the less likelihood there is they will ever go back.

IBEC argues that people are being misled by some solicitor’s advertisements that may even encourage people to make spurious claims. Full-page ads with lines such as ‘MAKE SURE YOU RECEIVE THE COMPENSATION YOU DESERVE’, or ‘CLAIM WITH CONFIDENCE’ and giving freephone numbers make up over twenty pages of the Dublin Golden Pages. Briscoe feels that “basically, it is offensive to many people, and it is unnecessary because if an individual has a genuine injury, it’s quite easy and straightforward for them to get legal advice. I don’t think this sort of advertising is socially acceptable, and it brings the profession into disrepute.”

“The problems are many,” says Pat Delaney of the Small Firms Association, “there’s the legal system, there’s the lack of competition, there’s the compensation culture which is ingrained in Irish society, there’s the lack of access to courts, and administrative and legal costs associated with insurance.” He reported recently that the SFA “has been besieged with complaints from companies and can identify at least fifteen closures over the past three months” partly as a result of increases in insurance premiums.

Both IBEC and the SFA maintain this is not just an employer’s issue, but an issue that effects everyone in terms of the overall competitiveness of our economy, and even more directly effects taxpayers and anyone who has private insurance. A recent report from the Irish Insurance Federation warns that policyholders can expect a 50% rise in premiums for all sorts of insurance. The insurance companies insist that this is due to the growing size of claims and court awards, although others accuse the insurance industry of doing quite very well out of the current system, citing their willingness to settle out of court and reluctance to fight cases all the way.

In order to counteract the spiralling costs of claims and the associated insurance premiums, IBEC has been pushing for a number of radical changes to our compensation system, including, imposing penalties on those found to bring spurious or exaggerated claims, the setting up an alternative system to the courts for dealing with undisputed claims so as to reduce the costs of delivering compensation, and a stricter control on advertising personal injury litigation.

The government has responded by setting up a special working group and producing a report. It proposes that a Personal Injury Assessment Board (PIAB) be set up as “an independent forum, which will decide on compensation for injured parties quickly and in an unintimidating environment".

This may appear to be the solution to everypone’s problems, but things are never so simple. The Law Society, for one, is strongly opposed to the setting up of the PIAB, which they say will in fact add to costs and delays. The society was very angry and suspicious at not having been represented in the working group, and claim that, with the insurance industry represented on the board, clearly the agenda is to reduce compensation amounts awarded to victims.

Ken Murphy, Director General of the Law Society, went so far as to say that the make-up of the PIAB reveals an inherent bias against victims, on whose behalf the Law Society has to speak out because, as he told RTÉ, “no organised voice for the victims of accidents exists.”

One personal injury lawyer explains the position: “What I would say, even as a citizen, without my lawyer’s hat on, is that it seems to me the problem is in fact that injured parties are not compensated appropriately, not the other way round, which is the more customary view of it.”

He suggests that what motivates a lot of companies to do something about health and safety is not concern for their staff and customers but only that insurance companies insist on it before they will cover them. Until such a time as there is that kind of culture of safety in which it is the welfare of citizens and workers that is the driving force behind our compensation system, we need the legal system to ensure companies take responsibility for their duty of care.

Justice O’Flaherty wrote in 1993 that “the personal injury compensation system recognises the premium which a democratic society places upon the citizen’s interest in the recognition and protection of his rights to bodily integrity.” Clearly, all genuine claims need to be dealt with scrupulously, and where any form of negligence, or failure in the duty of care is found there has to be legally supported recompense.

Recently we heard of a waitress who was awarded over £17,000 in personal injury damages and legal costs because the hotel where she worked had not shown her how to shine long-stemmed wine glasses correctly. At first this may appear somewhat extreme, but as a safety consultant giving evidence told the court, the woman should certainly have been trained how to safely hold the goblet end of the glass in the palm of her hand and the stem between her two fingers. As a result of the untutored way she held the glass as she was cleaning it, it broke and cut her left wrist close to her hand. The injury required four stitches.

The benefits of a compensation system that finds in favour of the plaintiff in such cases include care for the injured, increased awareness of safety practices, of our rights and of our responsibilities towards one another.

But a compensation system that is out of control can have damaging effects on society, not just in terms of the cost of insurance, and the cost to our companies and to the exchequer, but more fundamentally it can lead to a breakdown in social solidarity. We may already have arrived at a situation where a teacher can’t put a plaster on a student’s finger for fear of being sued, where GPs send the most routine cases to casualty in case they miss something, where insurance premiums make it to too expensive to open a playground, or run a bingo night in the local parish hall. Isn’t it tragic if we are too afraid to look after one another’s children, or to give someone a lift?

No comments: