9780198925231-Ch1

16

CHAPTER 1 Introduction

→

culture of compensation when imposing liability. Dyson J in Woodroffe-Hedley , for example, was careful to stress that: Many accidents occur on guided climbs where no one is to blame. This decision should not be seen as opening the floodgate of claims against mountain guides whenever such accidents happen . . . Anyone who climbs with a guide is, as a matter of law, treated as consenting to the ordinary dangers of mountain climbing. 54 But if a compensation culture exists—and it is far from clear that it does 55 —should we be con cerned? After all, as Lord Sumption has noted, ‘[i]f the law entitles the victim of an accident to compensation, it ill becomes us to criticise him for knowing it and claiming’. 56 Surely the more accident victims are compensated for their losses, the better. Similarly, insofar as tort law is concerned with effecting corrective justice, more tort claims simply means more justice. What is undesirable about that? At root, concerns about what Lord Hobhouse in Tomlinson v Congleton Borough Council described as the existence and effects of ‘an unrestrained culture of blame and compen sation’ (at [81]), at least in part, seem to be a discomfort with the apparent unwillingness of individuals to take personal responsibility for their actions. 57 This may seem a strange argument to make. After all, as we have seen, tort law appears to be built on notions of individual responsibility, by holding people responsible for their actions and the harm they have caused. If so, how can an increase in the availability of tort claims be understood to discourage individual responsibility? The answer is the belief that there is a danger that if we provide tort claims and compensation too readily—that is, if we make it too easy for people to demand that others make good the losses they suffer—it may discourage people from taking responsibility for themselves . This may well be a bad thing, or at least sub-optimal. But is there any evidence that this is really happening? Well, it depends who you ask. While the conclusion of the Labour Government’s Better Regulation Task Force inquiry in 2004 was that the ‘compensation culture is a myth, but the cost of this belief is very real’, 58 six years later the (then) Prime Minister, David Cameron, took a different view: A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext. We simply cannot go on like this. 59

→

PROPERTY OF OXFORD UNIVERSITY PRESS

54. Lord Dyson reiterated this point in his 2013 Holdsworth Club lecture: ‘although I found for the widow in that case, I do not believe that it can be said that my decision made a contribution to compensation culture’ n31 at [33]. 55. See e.g. the House of Commons Constitutional Affairs Committee finding in 2006 that while there was no evidence of a compensation culture, ‘there is plenty of evidence of excessive risk aversion and a mistaken perception that this is caused by litigation’ ( Compensation Culture Third Report of Session 2005–06, vol I HC 754-1 at [31]).

56. Sumption n40 . 57. Morgan n41 384.

58. Better Regulation Task Force Better Routes to Redress (2004) 3. 59. Lord Young, Common Sense, Common Safety (Cabinet Office 2010) 5.