9780198925231-Ch1

18

CHAPTER 1 Introduction

→

In his Personal Injuries Bar Association speech, Lord Sumption suggests that: . . . the law of tort is an extraordinarily clumsy and inefficient way of dealing with serious cases of personal injury. It often misses the target, or hits the wrong target. It makes us no safer, while producing undesirable side effects. What is more, it does all of these things at disproportionate cost and with altogether excessive delay. 71 In response to this, at the same time as fanning the flames of the ‘compensation culture’ myth (or reality), the government has also legislated to protect the ‘everyday heroes’ deterred from partici pating in socially useful activities due to worries about risk and/or liability. 69 One way in which they have done this is through the Social Action, Responsibility and Heroism Act 2015 which seeks to ensure that courts have regard to ‘social action’ and ‘heroism’ of the defendant and ‘responsibility’ of the claimant when determining a claim in negligence or breach of statutory duty. The Act had a rough ride through the parliamentary process, earning itself the epithet of ‘the most unnecessary, indeed pointless piece of legislation to be considered by Parliament for a very long time’. 70 The ‘compensation culture’ debate—like the search for the Loch Ness monster—looks set to continue for a while yet. which, though risky, also bring societal benefits. In other words, the fear of liability leads people to simply refuse to engage in generally beneficial activities—school trips are cancelled, horse chestnut trees are stripped of their conkers and competitors are banned from running in pan cake races for fear of being sued if things go wrong. 67 This is the problem of over -deterrence. As James Hand notes: The compensation culture cliché may not be a reality, but if it discourages people from pursuing truly legitimate claims—or undertaking valuable activities—then it is, neverthe less, a very real cause for concern. 68 67. See Frank Furedi and Jennie Bristow The Social Cost of Litigation (Centre for Policy Studies September 2012). 68. Hand n51 591. 69. Anon ‘Chris Grayling vows to “slay health and safety culture”’ The Telegraph 19 June 2014. See and com pare arguments in favour and against the Bill in the written evidence to the Public Bills Committee (PBC (Bill 009) 2014–2015).

70. Lord Pannick ‘UK negligence law is already fit for heroes’ The Times 13 November 2014. Lord Pannick con tinued his assault on the Bill in the House of Lords: ‘Mr Grayling, the Lord Chancellor, has told us . . . that men and women up and down the land are standing ready to volunteer for social action. They are preparing themselves for acts of heroism, waiting only to receive the message that Parliament has approved this Bill to remove the concerns that they otherwise have about litigation. Then off to the youth clubs and old-age homes they will go to volunteer and into the lakes they will dive to rescue those in danger, and in those circumstances it would be irresponsible of me to delay the Bill any longer . . . This always was and it remains the most ridiculous piece of legislation approved by Parliament in a very long time. However, I pay genuine tribute—I emphasise “genuine tribute”—to the Minister [Lord Faulks], who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy, to a text that would barely muster a pass mark in GCSE legal studies, if there is such a thing’ (HL Deb, 6 January 2015, vol 758(79), cols 261–2). See also Rachael Mulheron ‘Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015’ (2017) 81 Modern Law Review 88 and discussion in section 8.5 . 71. Sumption n40 . He concludes that ‘he has no doubt that’ the current system ‘will survive’. And will do so for three reasons: (a) the only alternative—a no-fault compensation scheme—would be enormously costly to introduce; (b) the benefits of tort law are visible to the public, while the costs are more subtle and indirect; and (c) public notions of personal responsibility and the proper function of law. PROPERTY OF OXFORD UNIVERSITY PRESS