How do you limit the risk of swimming accidents? Dig up the public beaches!
The warning by Lloyds chairman Lord Levene on 15 September that Britain is in danger of adopting an American-style approach to litigation is not unexpected, given the problems this trend poses for the insurance industry (1).
Those who express fears about the social consequences of a more litigious society might be surprised to find that some members of the judiciary agree with them. In fact, some senior judges are attempting to stem the growth in personal injury claims.
One of the reasons behind the growth of compensation culture is the flexibility of the English common law. The expansion of negligence claims is partly attributable to the vagueness of the test used to determine whether a duty of care is owed to an injured person (2). Judges have recently found defendants liable in all kinds of circumstances where liability did not previously occur.
Some support the growth in litigation. It is often claimed that holding people responsible for their actions deters negligent behaviour. In theory, the threat of legal action makes people and organisations act more carefully. The problem is that even the remote possibility of being sued means that they adjust their behaviour in unexpected ways. As the American commentator Peter Huber noted, litigation does not deter risk; it deters behaviour that gets people sued (3).
The pervasive fear of litigation, and the conflict among judges about how to deal with this, have been illustrated by the tragic case of John Tomlinson (4). Brereton Heath Country Park is a popular country park in Cheshire owned by the local council. It contains a derelict sand quarry that had been flooded to create a 14-acre lake, and attracts more than 160,000 visitors a year.
But on a hot May bank-holiday weekend in 1995, Mr Tomlinson had run and dived forward into the water. He had not behaved in a foolhardy or unusual manner, but his head hit the bottom and he broke his neck. He was left a tetraplegic.
Britain has no scheme to compensate people like Mr Tomlinson; successive governments have felt that the cost would be too great. Compensation is only payable if someone else is to blame for the accident, so Mr Tomlinson sued the council. Eight years after his injury, his case finally reached the highest civil court, the House of Lords.
The council, though, had put up signs forbidding swimming – which might make someone question how it could be held responsible. The problem was that people ignored the signs. Local people had been swimming in the old quarry before the Country Park was created, and kept on swimming and paddling afterwards. To reinforce the signs, leaflets were handed out warning of the dangers of using the lake. But this didn’t work either. Park rangers who approached parents about their swimming children were rudely rebuffed.
The council decided to destroy the lake’s beaches, which would make it much harder for people to enter the water. The council regretted the decision, but such was its fear of litigation it felt that there was no alternative. However, the council had other pressing demands on its resources – and it was in the intervening period that Mr Tomlinson suffered his terrible injury. The beaches were destroyed soon afterwards.
Sympathy for the injured has always been an important factor in personal injury claims, since judges know that someone who has suffered a severe injury will be left with nothing if their claim fails. This means that a judge, even if only at an unconscious level, is often looking to award compensation.
Unfortunately, when judges strain to find some way of establishing fault on the part of a landowner or public body, unpleasant side-effects often follow. Institutions start trying to avoid accidents at all costs, with destructive results. Congleton Borough Council destroyed the beaches on which children paddled. Norwich City Council wanted to cut down roadside chestnut trees on the grounds that children looking for conkers might be involved in accidents (5).
The progress of Mr Tomlinson’s case shows that judges are divided about how to deal with such claims. The first judge decided that the council was not liable. Mr Tomlinson’s lawyers appealed and the Court of Appeal, by a majority, reversed the initial judgement. They found that the council was to blame, although they also found that Mr Tomlinson was himself two-thirds responsible and reduced his damages award by the same proportion.
Even so, with a tetraplegia case Mr Tomlinson could have expected to receive a six-figure settlement. Justice Sedley’s response to the argument that a finding of liability would mean that other local authorities and landowners in a similar position would have to destroy beaches was: ‘so be it.’ (6)
The council’s insurers appealed to the House of Lords, which agreed with the initial trial judge and restored the original verdict. The Law Lords had some harsh words to say about the adverse social costs of the compensation culture. Lord Hoffman made it clear that it should be extremely rare for an occupier of land to be under a duty to prevent people from taking risks inherent in the activities they freely choose to pursue. As he put it: ‘If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair.’ If injury resulted, the injured person should not expect to succeed in a claim against the landowner.
So is the verdict of the House of Lords in Tomlinson the high-water mark of the compensation culture? Unfortunately, it is almost certainly not. There have been other attempts over the past 20 years by judges to limit the scope of negligence claims. Because each case is decided on its own facts, individual judges have discretion to decide issues of causation and forseeability.
Perfectly respectable legal arguments can be advanced in support of the different approaches of both Lord Justice Sedley and Lord Hoffman. However, neither of them was elected. Questions of enlarging or restricting liability are issues of policy, so important to society that they should be addressed through the democratic process and not left to the unelected members of the judiciary.
Parliament has to draw a clear dividing line at some point between those losses that are recoverable and those that are not. Until the government takes a hand and decides where the limits of liability are, individual judges will continue to find defendants responsible in situations that seem far from obvious. The unpredictability of such a system does nothing to help those who have been injured, or society as a whole.
The trouble with Making Amends, by Jon Holbrook
‘Duties of care’ to the careless and criminal, by Jon Holbrook
Can a company kill?, by Jon Holbrook
(1) Risk and the Global Economy (.pdf 272 KB), Peter Levene, Lloyd’s of London, 15 September 2003
(2) ‘The compensation culture: a new legal paternalism?’, Daniel Lloyd, in Compensation Crazy: Do we Blame and Claim Too Much?, ed Ellie Lee, Hodder & Stoughton, 2002, p65-66. Buy this book from Amazon (UK) or Amazon (USA)
(3) Liability: The Legal Revolution and Its Consequences, Peter Huber, Basic Books, 1990, p164. Buy this book from Amazon (UK) or Amazon (USA)
Tomlinson (FC) v Congleton Borough Council and others,  UKHL 47, 31 July 2003
(5) Conker trees to get the chop, David Sapsted, Daily Telegraph 14 June 2001
(6) Tomlinson v Congleton Borough Council and Anor,  EWCA Civ 309, 14 March, 2002
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