Department for Constitutional AffairsPublications

| Publications | Press notices | Consultation papers | Reports and reviews | Research | Speeches | Ministerial speeches | Parliamentary statements | Annual reports | Legislation | Green papers | White papers | Better regulation | Statistics | Archive

|© Crown Copyright & Disclaimer

Home > Publications > Speeches > Ministerial speeches > 2005 > Risk and compensation culture

Lord Falconer of Thoroton
Constitutional Affairs Secretary and Lord Chancellor

Risk and compensation culture

Institute of Public Policy and Research (IPPR)

26 May 2005


I am grateful to IPPR for arranging today's event, and to Nick Pearce (Director, IPPR) for chairing it and to all the people who have helped organise it.

Could I just pick up a few of the themes which the Prime Minister mentioned in his speech.

The speech poses very well the central question of where society places 'risk' - what should the individual accept as his or her responsibility? Where is risk to be shared? Where should it be borne by another person?

The issue of compensation is key. Where there is fault, compensation should follow. But we need to have a consensus around what is someone's fault and what is an accident - it is vital that there is broad acceptance within society, both of where the boundaries are, and what the level of compensation should be.

The system goes wrong when there is not broad acceptance, either of the boundaries or the amount of compensation.

On where the boundaries are, there is, in the majority of areas in society, broad acceptance of the level of risk which individuals bear. We have a reasonable, shared understanding about what is negligent driving; we know when we see unsafe work conditions or receive poor professional services; and there is a broad consensus about what constitutes unfair employment practices or discrimination. There is little doubt that recovery should be allowed in these areas.

And, equally, we understand those cases where an individual must take responsibility. If you dive into the water where there is a 'no diving' sign, or engage in risky sports an individual does so in the knowledge that there is a degree of risk and that, should things go wrong, the balance is tipped towards individual responsibility.

Indeed, mistakes by your doctor which are reasonable but wrong judgements or being arrested by the police who honestly but carelessly believe you should be arrested, are areas where society, broadly, accepts you take that risk yourself. Either because it is only fair that you should do, or in the latter case because society recognises that we depend to such an extent on a well-functioning police force, that overall we are much safer if we accept that the police will, occasionally, make honest but careless mistakes.

Equally, we don't want the local authority social services to be the victim of negligence actions when it honestly, but wrongly, takes steps to protect children from harm.

And on overall levels of compensation, there is a constant question of relativities. When we compare the awards which have been made to employees in the city who have been the victim of sexual discrimination, against the awards made for the physical injury victim, who has become a quadriplegic as a result of the negligent driving, or the unsafe workplace - there are questions over whether the relationship is correct. There seems to be different sorts of standards and the courts need to keep these relativities in mind when they set awards.

But the Courts have generally got the boundaries and the levels right. Indeed, the numbers of claims, as the Prime Minister has pointed out, are going down.

But, despite this, it has not prevented the growth of a belief that, in too many places, the boundaries are in the wrong place. This has a bad effect on society. You can see it in the:

Why has this happened? No one factor.

But I can identify a number of contributors:

First the system of recovery. Whatever the boundaries are, as set by the court, if the prospects of high costs and lengthy delays makes the prospect of an inflated settlement more preferable - then there is something wrong with the system.

We need to ensure that the means by which you claim, is as good as deterring the bad claim as the courts judgements themselves. Alternative dispute resolution, uncomplicated court procedures, and reasonably priced justice are important.

Second, coupled with the first point, it's vital that people have accurate expectations about what the system will produce - it must be clear in statute what the law is.

If in the hospital waiting room, there is an advert which suggests that if you haven't got better, you might like to consult the solicitor at the above-mentioned address; or the hospital has a solicitors' office next to the flower shop in the hospital itself; or the police officer's accident reporting form has details of a local personal injury solicitor - the public will think that the boundaries are not set at about the right place, but that this is a game in which it is worth having a go.

The growth of claims farmers has fostered and encouraged the attitude that if you are injured, you should see if you can turn it into money. Our Compensation Bill will help with that by introducing regulation of claims farmers.

Third, in some areas we are too willing to succumb to short-term measures. The growth of this culture is just as much about the views of state organisations and insurers in how they respond to claims as it is about what the courts do. If it is known organisations will pay out, then that encourages these claims.

Fourth, we need to continue this public conversation about acceptable levels of risk. The loud voice of compensation and money can sometimes drown out the quiet voice of balance and reason. It's important that we all set out the true position about where the boundaries are.

Fifth, rehabilitation. Where people suffer an injury at work, we should be doing all we can to ensure our health care system is focussed on getting them back to work as soon as reasonably possible - and on taking steps to avoid repetition of the accident. So the focus is, wherever possible, on recovery, where that is reasonable.

None of these reasons I have given provide a complete answer, or a complete response.

But the strongest possible message is that people who have been wronged have a claim.

But for every injury there is not someone to pay.

There are risks, which it is worth encouraging society to take, for the good of everybody.

 


© Crown Copyright