Tort Law Culture: Image and Reality

Journal of Law and Society

Volumn 39, Issue 4, 2012, Pages 562-592

  Lewis, Richard ^a   Morris, Annette ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84869802863     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2012.00600.x     Document Type: Article

References (71)

1. R. Cotterrell, Law, Culture and Society (2006) 83.
2. D.M. Engel and J.S. Engel, Tort, Custom and Karma (2010) 11.
3. M.S. Shapo, Tort Law and Culture (2003).
4. D. Nelken, 'Law, Liability and Culture' in Fault Lines: Tort Law as Cultural Practice, eds. D.M. Engel and M. McCann (2009) 22.
5. The lack of coherent policy behind compulsory insurance was traced in R. Lewis, 'The Duty to Insure' (2004) 154 New Law J. 1474 and C. Parsons, 'Employers' Liability Insurance - How Secure is the System?' (1999) 28 Industrial Law J. 109.
6. Department for Work and Pensions, Compensation Recovery Unit (CRU) - Performance Statistics, http://www.dwp.gov.uk/other-specialists/compensation-recovery-unit/performance-and-statistics/performance-statistics.
7. In Australia they are less than a fifth: H. Luntz and D. Hambly, Torts: Cases and Commentary (5th edn.) 4.2002.
8. D. Harris et al., Compensation and Support for Illness and Injury (1984) Table 2.1.
9. Datamonitor, UK Personal Injury Litigation (2003) 79.
10. J. Stapleton, Disease and the Compensation Debate (1986).
11. 90 per cent of recipients of damages of 20,000 or more also received, on average, three different social security benefits. Law Commission, Personal Injury Compensation: How Much Is Enough? Table 901.1994.
12. J. Steele, Risks and Legal Theory (2004) 36: '"Insurance 'technology" underlies the whole practice of tort law.' Without insurance, it is probable that tort liability itself could not survive. J.G. Fleming, The American Tort Process (1988) 21, and R. Lewis, 'How Important are Insurers in Compensating Claims for Personal Injury in the UK?' (2006) 31 The Geneva Papers on Risk and Insurance 323.
13. R. Lewis, 'Insurers and Personal Injury Litigation: Acknowledging "The Elephant in the Living Room'" [2005] J. of Personal Injury Law 1.
14. R. Lewis, 'Insurance and the Tort System' (2005) 25 Legal Studies 85.
15. S. Halliday, J. Ilan, and C. Scott, 'Street-Level Tort Law: The Bureaucratic Justice of Liability Decision-Making" (2012) 75 Modern Law Rev. 347-356.
16. IMAS Corporate Finance (on behalf of TheCityUK and UK Trade & Investment), UK Financial Services: Ownership, Value and M&A Developments (2012).
17. Ernst and Young, Bringing Profitability back from the Brink of Extinction: A Report on the UK Retail Insurance Market (2011) 17. The Association of British Insurers found the percentage to be two thirds in Response to the Greenaway Review of Compulsory Motor Insurance and Uninsured Driving annex B.(2004.
18. D.W. Elliott and H. Street, Road Accidents (1968) 209.
19. R. Lewis, 'Litigation Costs and Before-The-Event Insurance: The Key to Access to Justice?' (2011) 74 Modern Law Rev. 272.
20. Mintel International Group, Legal Expenses Insurance (2008).
21. H. Blundell, 'Free to Choose? BTE Legal Expenses Insurance and Freedom of Choice' [2004] J. of Personal Injury Law 93.
22. P. Abram, In Sure Hands? (2002).
23. L. Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (2011).
24. J. Grisham, The Runaway Jury (1996). The residual power to order trial by jury in personal injury cases after the Administration of Justice (Miscellaneous Provisions) Act 1933 was very rarely exercised. After Ward v. James [1966] 1 Q.B. 273, juries were even more confined.
25. Davis v. Johnson [1979] A.C. 264, at 278; Fairchild v. Glenhaven Funeral Services Ltd [2002] 1 A.C. 32.
26. T. Goriely, R. Moorhead, and P. Abrams, More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour (2002) 159.
27. 'Case Conundrum?' (2011) 161 New Law J. 1569,.
28. S. Lloyd-Bostock, 'Commonsense Morality and Accident Compensation' in Psychology, Law and Legal Processes, eds. D.P. Farrington et al. (1979).
29. H. Genn, Hard Bargaining (1987) 74.
30. F.V. Harper and F.G. James, The Law of Torts (1956).
31. D. Dewees, D. Duff, and M. Trebilcock, Exploring the Domain of Accident Law: Taking the Facts Seriously (1996) 19. P.A. Bell and J. O'Connell, Accidental Justice: The Dilemmas of Tort Law (1997) 63.
32. For example, the Health and Safety Executive estimated that the cost of including pain and suffering would increase payroll costs from 1 per cent to 2.5 per cent in an integrated compensation scheme for work injury. Greenstreet Berman, Changing Business Behaviour - Would Bearing the True Cost of Poor Health and Safety Performance Make a Difference? (2002).
33. Wass, 'Court Awards of Damages for Loss of Future Earnings: An Empirical Study and an Alternative Method of Calculation' (2002) 29 J. of Law and Society 406,.
34. Oliphant, 'Tort Personal Injury Statistics: Is There a Compensation Culture in the UK?' 14 Torts Law J. 158 and [2006] J. of Personal Injury Law 87. The reasons include the rise in the real value of earnings; a reduction in the discount rate from the extraordinary 4.5 per cent level which was used for thirty years until 1998; and the increase in awards for non-pecuniary loss as discussed in R. Lewis, 'Increasing the Price of Pain' (2001) 64 Modern Law Rev. 100,2006.
35. Those receiving periodical payments are much better treated: R. Lewis, 'The Indexation of Periodical Payments in Tort: The Future Assured?' (2010) 30 Legal Studies 391;R. Lewis, 'The Politics and Economics of Tort: Judicially Imposed Periodical Payments of Damages' 69 Modern Law Rev. 418,2006.
36. P. Toynbee, 'A compensation culture makes victims of us all'Guardian, 21 1999.
37. R. Abel, English Lawyers between Market and State: The Politics of Professionalism and H. Kritzer, 'The Fracturing Legal Profession: The Case of Plaintiffs' Personal Injury Lawyers' (2001) 8 International J. of the Legal Profession 2252003.
38. Boleat Consulting, The Claims Standards Council (2005).
39. National Association of Citizens Advice Bureaux, Door to Door: CAB Clients' Experiences of Doorstep Selling (2002).
40. P. Rohan, 'Law Society Votes to Allow Referral Fees'Law Society Gazette, 9 January 2004. Vanilla Research, Referral Arrangements Research (2010); Charles River Associates, Cost Benefit Analysis of Policy Options Related to Referral Fees in Legal Services (2010); Legal Services Board, Referral Fees, Referral Arrangements and Fee Sharing: Decision Document (2011); A. Higgins, 'Referral Fees - The Business of Access to Justice' (2012) 32 Legal Studies 109.
41. The Compensation Act 2006, s. 4 and the Compensation (Claims Management Services) Regulations (S.I. No. 3322).2006.
42. M. Boleat, Claims Management Regulation (2010); Ministry of Justice, Claims Management Regulation Annual Report 2010/2011 (2011.
43. Association of British Insurers, News Release 29/12, 19 June 2012.
44. The Access to Justice Act 1999, ss. 27, 29. R. Abel, 'An American Hamburger Stand in St Paul's Cathedral: Replacing Legal Aid with Conditional Fees in English Personal Injury Litigation' (2001) 51 DePaul Law Rev. 253.
45. In practice, in nine out of ten personal injury cases the uplift in fees is limited by industry-wide agreements. In road traffic accidents it is generally restricted to 12.5 per cent, in employment accident cases to 25 per cent, and in employment disease cases to 27.5 per cent. Civil Procedure Rules Part 45, ss. III, IV, V; G. Wignall (ed.), Conditional Fees, A Guide to CFAs and Litigation Funding (2008).
46. In response to such concerns the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 44 will make claimants liable to pay the uplift in fees out of their damages. However, they will still be able to initiate a claim without incurring any expense.
47. 'Dead budgies and muddy boots cost us a fortune'Times, 15 July 2003.
48. Department of Health, An Organisation with a Memory: Report of an Expert Group on Learning from Adverse Events in the NHS T. Baker, The Medical Malpractice Myth (2005) ch. 2 reviews several American studies all finding a substantial failure to claim.2000.
49. This includes approximately 520,000 accidents on an urban road, street or pavement (excluding RTAs), 58,000 accidents in a shopping area, 22,500 accidents in business or leisure public buildings, 244,500 accidents in school, 38,000 in public playgrounds, and 44,000 accidents in public houses. Estimates derived from the Home Accident Surveillance System (HASS) and Leisure Accident Surveillance System (LASS) run by the Department of Industry, both of which closed in 2003. Data now available from the Royal Society for the Prevention of Accidents: http://www.hassandlass.org.uk/query/reports.htm.
50. The claims of miners in respect of, first, respiratory disease, and secondly, the use of vibrating tools led to settlement schemes which were called 'the biggest personal injury schemes in British legal history and possibly the world.' From 1999-2004 about 760,000 claims were registered: DTI, 'Background to Coal Health Claims', athttp://www.dti.gov.uk/coalhealth/01.htm.
51. HSE, 'Health and Safety Statisticshttp://www.hse.gov.uk/statistics/.
52. S. Pickvance, 'A Little Compensation' (2005)http://www.hazards.org/compensation/alittlecompensation.pdf.
53. Local Government Association, Suing the Council - Helping the Citizen or Harming the Community Contrast findings that claims against councils for failures in highway maintenance have not significantly increased: S. Halliday,2004.
54. Scott, 'The Public Management of Liability Risks' (2012) 31 Oxford J. of Legal Studies 527-536.
55. For references, see A. Morris, 'The Compensation Culture and the Politics of Tort' in Tort and the Legislature: Common Law, Statute and the Dynamics of Legal Change, eds. T.T. Arvind and J. Steele (2012).
56. Department for Work and Pensions, Review of Employers' Liability Compulsory Insurance, First Stage Report (2003).
57. Sarat, 'The Emergence and Transformation of Disputes: Naming, Blaming and Claiming' (1981) 15 Law & Society Rev. 631.
58. M. Galanter, 'Reading the Landscape of Disputes: What we Know and Don't Know (and Think we Know) About our Allegedly Contentious and Litigious Society' (1983) 31 UCLA Law Rev. 4, at 61.
59. P. Fenn, A. Gray, and N. Rickman, The Impact of Conditional Fees on the Selection, Handling and Outcome of Personal Injury Cases (2002).
60. P. Fenn, A. Gray, and N. Rickman, The Impact of Sources of Finance on Personal Injury Litigation (2002).
61. Atkinson, 'Personal Injury Litigation, Conditional Fees and After-the-Event Insurance' (2000) 19 Civil Justice Q. 118.
62. Department for Transport (DfT), <>. However, the DfT acknowledges that not all casualties are reported to the police and estimate the annual actual number of road casualties as 730,000: DfT, Reported Road Casualties in Great Britain: 2010 Annual Report (2011).http://www.dft.gov.uk/statistics/series/road-accidents-and-safety/.
63. D. Brown and S. MacDonnell, Update from the Third Party and PPO Working Parties (2012).
64. European Insurance and Reinsurance Federation (CEA), Minor Cervical Trauma Claims (2004) 4.
65. The government is considering ways of reducing whiplash claims, holding two Whitehall Summits on the issue in 2012. Proposals include referring claimants to an independent panel of medical experts and raising the small claims limit.
66. Ministry of Justice, Claims Management Regulation Annual Report 2010/2011 (2011)211.
67. Financial Services Authority, 'Third Party Capture - What You Need to Consider', ahttp://www.fsa.gov.uk/pubs/other/third_party_capture.pdf.
68. Pre-Action Protocol for Law Value Personal Injury Claims in Road Traffic Accidents and Practice Direction 8B to the Civil Procedure Rules. J. McQuater, 'The RTA Claims Process' J. of Personal Injury Law 103.2010.
69. A. Sarat, 'Grievances, Claims and Disputes: Assessing the Adversary Culture' (1980) 15 Law & Society Rev. 525-564.
70. S. Penrod, 'Social Psychology and the Emergence of Disputes' (1981) 15 Law & Society Rev. 655-658.
71. H. Kritzer, 'Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases' (1991) 18 J. of Law and Society 400-420.