Friday, 29 August 2014

The Wrong Kind of Injury

In his superb book The Rule of Law, Thomas Bingham wrote that the core of the principle of the rule of law was that "all persons and authorities within the state, whether public or private should be bound by and entitled to the benefit of laws publicly made..."

The importance of the rule of law applies just as much to civil litigation as it does to the criminal justice system or administrative law.

Under the law of tort, and more particularly the law of negligence, an individual who suffers injury due to the negligence of a person or body who could or should have foreseen that their negligence might harm the other, is entitled, subject to some exceptional cases, to compensation for the injury. The purpose of the compensation is to put the individual in the position they would have been in had the negligence not occurred, so far as money is able to do that.

Of course public policy considerations have had a large part to play in the development of the rules of the law of negligence, for example in the area of compensation for so-called nervous shock. Immunity from suit has been afforded to various groups at different times. But, if the rule of law has any meaning in the field of civil claims for compensation then the established principles of entitlement and liability  should apply equally to all, be they rich or poor, powerful or weak, a public authority or a private individual. The law should not deprive a claimant of compensation which he would otherwise be entitled to receive simply because it suits the financial interests of the defendant. That is a principle of considerable importance. But it is a principle under attack.

Various organisations and individuals of influence have, for varying reasons, been arguing for changes in the law of negligence to prevent certain individuals who suffer particular kinds of injury from securing compensation or to have their claims limited. There would be one law for some and a different law for others, depending on the nature of the injury suffered.

Aviva has argued for there to be no compensation for "short-term" whiplash injuries suffered in road traffic accidents. Instead, rehabilitation would be offered. This, it claims, could reduce annual motor insurance premiums by an average of £50. In jest I tweeted Aviva suggesting that premiums could be further reduced if it also restricted liability for injuries to other body parts. Aviva favourited my tweet. The fact that I am not sure if the favouriting was ironic or not is in itself rather telling. Whiplash to the neck is the wrong sort of injury - if you suffer a broken leg in a road traffic accident and recover within two months you will be entitled to compensation. If you suffer an injured neck for two months you will not be entitled to compensation. Why? Because it suits the financial interests of motor insurers and motorists.

In the field of clinical negligence Dr Christine Tomkins, Chief Executive of the MDU, writing in its annual report for 2013 says:

"We continued to draw attention to the unsustainable cost of clinical damages
awards. Patients who are negligently damaged must be compensated, but
the cost of compensation must be affordable and fair for all parties. With
claims inflation outstripping other measures of inflation every year, the cost
of clinical negligence claims is doubling approximately every seven years. Even
if the current economic climate picks up, society cannot afford to pay such
overly inflated claims indefinitely. With an election planned for May 2015 it is
unlikely there will be any radical change in the short term. But the cost of claims
must be addressed before it becomes a full blown crisis. On your behalf we
continue to pursue a package of reforms, including caps on future care costs and
loss of earnings awards."

The MDU proposes a cap of three times national average earnings for loss of earnings claims in clinical negligence cases. Pace Kerry Underwood but I think the proposal is to limit annual not total loss of earnings to three times the national average. Nevertheless the MDU is advocating a different law for individuals suffering clinical negligence injury which disables them from working, than for other injured claimants - they have suffered the wrong kind of injury. A different rule of compensation would apply to a doctor negligently injured at work than to a patient negligently injured by the doctor.

Lord Saatchi's Medical Innovation Bill seeks to prevent patients from obtaining compensation when injured as a result of (what would now be found to be) negligent medical treatment. The existing law of negligence would apply if a patient suffers injury due to a negligent diagnosis or a surgical error but not if the injury were due a decision to treat. Again the law should discriminate between different kinds of injury in service of some other perceived greater good. At its second reading in the House of Lords there was much debate about what the Bill would achieve and its impact on the medical profession, but only Lord Brennan spoke about the fact that the Bill would introduce an targeted immunity from liability for one sector of society - doctors making treatment decisions.

Negligence law is not immutable and I would not dispute that compensation for negligently caused injuries must be and be seen to be reasonable. But whilst each of these proposals is intended to produce a desirable gain: lower premiums, lower taxes, more medical innovation; it should at least be noted that the cost would be not only to individuals deprived of compensation but to the principle that the law should be consistent and apply equally to all, including motor insurers and doctors. These proposals are examples of special pleading by influential sectors of society.

There are more headline grabbing assaults on the rule of law - for example proposed legislation to allow the government to pick and choose by which rulings of the European Court of Human Rights it will abide or Boris Johnson's proposal to reverse the presumption of innocence for British citizens who travel to Syria or Iran - but they should not allow us to ignore the increasing tendency to regard as dispensable the principle that the law of negligence should apply equally to us all.

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