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The disparate aims of tort law

As such Patrick Atiyah argues that the operation of tort law is largely arbitrary or—to use his words—a lottery. 49 Tort law’s effectiveness as a mechanism for compensation is limited by its allegiance to fault over need. In the absence of fault, tort victims are thrown back onto alter native sources of compensation and support: social security, insurance policies and other forms of compensation such as the Criminal Injuries Compensation Scheme or NHS Resolution. 50

A compensation culture?

There is much debate about the existence (and calls for eradication) of a so-called ‘compensa tion culture’, a culture that encourages us to ‘blame and claim’. 51 Certainly, a cursory glance at the news media provides any number of examples of its (supposed) effects. 52 As former Court of Appeal judge Stephen Sedley notes in his excellent review of the Secret Barrister’s book Fake Law: The Truth About Justice in an Age of Lies : The United Kingdom has in recent years been blighted by a compensation culture gener ated by health and safety legislation and human rights laws and promoted by well-paid legal aid lawyers and credulous judges. We know these to be facts because newspa pers and electronic media have exposed them fearlessly . . . The Sun and the Daily Mail needed individuals for their readers to hate or fear: scroungers who made piles of cash out of trivial or imaginary injuries, whingers who turned their self-regarding grievances into human rights claims, and legislators and lawyers who enabled and encouraged them to do it. These have become our folk-devils. 53 Sedley’s comments, though almost certainly ironic, are nonetheless arresting—not least because over the years judges have sought to distance themselves from suggestions of a →

49. Patrick Atiyah The Damages Lottery (Hart 1999). 50. Eduardo Reyes ‘Show us the money’ Law Society Gazette 7 May 2024.

51. See e.g. Stephen Sedley ‘Mischief Wrought’ London Review of Books 4 March 2021; Alan Saggerson ‘Something must be done: Recent Legislative Contributions to the Common Law’ Lecture at Lincoln’s Inn, 30 October 2018; Sumption n40 ; Lord Dyson ‘Magna Carta and the Compensation Culture’ The High Sheriff’s Law Lecture, 13 October 2015; Dyson n31 ; Richard Lewis ‘Compensation Culture Reviewed: Incentives to Claim and Damages Levels’ [2014] Journal of Personal Injury Law 209; James Hand ‘The Compensation Culture: Cliché or Cause for Concern?’ (2010) 37 Journal of Law and Society 569; Kevin Williams ‘State of Fear: Britain’s “Compensation Culture” Reviewed’ (2005) 25 Legal Studies 500. 52. See e.g. Annabel Denham ‘I spent a day in Britain’s employment tribunals . . . and found a barmy system that is about to get worse’ Daily Telegraph 4 July 2024; Charlotte Bateman ‘Child paid £5k compensation after climbing onto roof of school and falling through ceiling’ My London 6 November 2022; Anne Widdecombe ‘We must get a grip on the compensation culture menace’ Daily Express 3 March 2021; John O’Connell and Chris Keates ‘Has the compensation culture gone mad?’ Daily Express 30 March 2018; Hugh Morris, ‘Compensation culture is ruining Britain’s reputation abroad, tour operators warn’ Daily Telegraph 21 June 2017; Emma Munbodh ‘Attitudes to claiming: the “compensation culture”’ Mirror 10 February 2015; Claire Carter ‘Judge refuses whiplash damages as he criticises Britain’s “compensation culture”’ The Telegraph 26 March 2014; Jaya Navin ‘Ridiculous compensation culture claims and pay-outs burden on tourist attractions’ Daily Mail 26 April 2010; Sandra Laville and Sally James Gregory ‘How a puppy, a paving slab and a passing cyclist made a bad break worth thousands: no-win no-fee firms blamed for compensation culture that costs £10bn a year’ The Guardian 23 October 2004. 53. Sedley n51 . PROPERTY OF OXFORD UNIVERSITY PRESS