The compensation act 2006 and the culture created

Within tort law to establish if the compensation act 2006 has done little to address the problems of the compensation culture firstly it is important to define the term compensation and compensation culture. [2] The definition of compensation culture is defined as it is perfectly permissible for a society to believe that an individual should be compensated as they have suffered damages, loss or injury from the person who is responsible or connected with the injury. [3] The definition of compensation is to restore the loss or damage where money is given or received or reparation for the person who has suffered. Compensation culture has risen extravagantly to show that claims for compensations are made over unimportant and insignificant matters thus resembling the compensational culture’s existence.

The introduction to Access of justice Act 1999 which involves the CFAs conditional fee arrangements establishment this enables each and every individual to have the right to claim compensation and the [4] no win no fee rule encourages more and more people to claim as there is only a win situation where if the claim for compensation is ineffective then the solicitors can get the fees from the opposition party and the risks of financial litigation have been reduced.

The Compensation Act 2006 has a number of issues regarding the rise in the compensational culture and one of the key points against the Act is that it has done little to address the compensation culture. Within this essay I will discuss the points regarding how effective the Act is and discuss the parts of the act which require reviewing also if necessary change in order for the Act to have complete control and affect. Looking at the Compensation Act 2006 which you can say that has made an attempt to deal with the amount of claims the courts look at but the argument is that certain parts of Act decrease the number of claims but not to the full extent which it possibly could do.

Looking at s.1 (A) [5] "A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way," This part of the act shows that it has taken steps to try stop claims to be brought into the courts and instead be settled outside the courts as ADR alternative-dispute-resolution where the procedure is much quicker and cheaper than court litigation. This furthermore prevents the claims which go through court and are taken care in decisions made by court judges where case law stops and prevents further action being taken. This part of the act specifies the approach the judges take to make case law concerning compensation as the end result can have a crucial impact within the compensation culture.

The second part of the Compensation Act 2006 s.2 [6] An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty. This part of the act clearly identifies that if the responsible individual offered an apology, solution or personal-injury to the other person involved consequently the person liable can’t get sued regarding negligence or breach of statutory duty. By not accepting apologies amount to negligence the claims have been limited to some degree therefore reducing the compensating culture. The procedure deals with the problem individuals claiming compensation on any insignificant matter which may occur therefore preventing compensation culture the other issue regarding this is that it may not be adequate for a vast majority of cases and could be criticized to not having a strong affect on major cases but only to the affects of small situations. The third part of the Compensation Act 2006 states s.3 [7] a person (“the responsible person") has negligently or in breach of statutory duty caused or permitted another person (“the victim") to be exposed to asbestos. This part of the act shows it has done only a proportional amount to address the concern of the increase of the compensational culture and this particular part of the act only looks at the issues regarding negligence brought upon victims who were exposed to asbestos therefore doesn’t go to the full extent to stop claims but limits them not to the full effect it possibly could.

It can be disputed that the section only affects a particular situation greatly however the act can be applied in other situations where the act can be very useful in the growing concern on the number of motor vehicle claims and claims for psychiatric harm where the act will valuable but as it is only limited in order to apply to cases the act in which it can be said that the Act has not done enough to reduce the concern about the compensation culture therefore the flood gates dispute is at affect and the Compensation Act 2006 can show to be ineffective due to the high number of compensation claims.

The part two of the Compensation Act which looks at claims management services is aimed at the claim management companies to put rules and regulations in place for the entire purpose of decreasing the idea of the compensation culture. Claim management companies [8] are under scrutiny as majority of the organisations have been proven that for their high-pressure sales tactics who visit accident victims in hospital to encourage them to make a claim they have also been banned for displaying advertisements in hospitals which shows and promotes to the injury victims to claim compensation. This part of the act shows there has been some action being taken to tackle the compensational cultures measures have been put forward laying restrictions for the claims management companies consequently this equals to less support to the public to put a claim in for compensation.

Within my conclusion regarding the compensation act 2006 I can clearly dispute that the act has done little to address the issues of the compensation culture as there are various amounts of claims arisen from different situations. In some particular parts of the act it is seen that the act has attempted to limit claims from certain situations where apologies are made for mistakes which prevent a claim to go forward as negligence.

2. In order to make a claim for compensation it is necessary to have established the existence of negligence in tort to claim upon. Negligence within tort points out that there has to be a duty of care owed from one party to the other which has been breached. In Amir’s case to work out if the accident victims or the families can sue in tort for personal injury or fatal accident compensation we have to look at if there was a duty of care owed to others and if Amir was negligent. In the famous case of [9] (Donoghue v Stevenson (1932) where the modern law of negligence is reflected upon, it was stated by [10] Lord Atkins who established the neighbour rule which is used in the modern day of law of negligence within his statement it was said that an individual must take adequate care to avoid acts or omissions where it is foreseeable that the outcome is likely to injure your neighbour in the terms of neighbour within law is a person who is or are closely and directly affected).

To be able to claim compensation certain factors have to be distinguished where a test has be passed for the claim to b successful, first of all the duty of care has to exist from the claimant to the defendant which is shown in the case of [11] WoodroofeHedley v Cuthbertson, where there has been a breach of care by the defendant which is shown in the case of [12] Bolton v Stone and thirdly the breach had equalled to damage to the claimant which has been shown in the case of [13] Nettleship v Weston. Also to support all the factors the case of [14] Ann’s v Merton London Borough Council 1978 reinforces the procedure.

By directing the neighbour rule upon Amir we can say that Amir should have taken and had satisfactory care in his mind for his neighbour who were the road users in general and the accident victims as all of them were owed a duty of care and we can say that Amir’s actions were not adequate as he did not take care and well being of others which resulted in an accident where people were severely injured and some had died including. Therefore it can be said that Amir is responsible as reasonable care wasn’t taken which affected the neighbour also Amir looking at the Nettleship v Weston case where it was held that every driver has a duty of care and should not fall below the standards of a reasonable driver this statement can be reflected upon Amir within the case of [15] Mansfield v Weetabix the driver was ill but carried on driving and crashed this case demonstrates poor driving which can be linked into Amir’s scenario.

Amir was working on his computer all night therefore had insufficient rest but still made the choice to drive and he risked his own safety and the safety of others to establish if Amir is liable we can argue that Amir knew that his lack of rest would have an effect on his driving and there isn’t an excuse regarding this as he we was fully aware of his actions therefore the rulings of the case [16] Roberts v Ramsbottom 1980 where it was held that an individual might escape liability if his/her actions at the time were wholly beyond their control in the case of Amir they prove to find Amir negligent and liable.

The important part is to make clear if Amir has breached the statutory duty as the claimant is trying to argue that there was a breach of duty to prove this we have to use this test: [17] (the statutory duty in question gives rise to an action for damages/ that the duty which was owed to the claimant/the duty was broken/ and the damage was caused by the breach of duty. Within the case of [18] Monk v Warbey 1935 [19] it was argued by the courts that there was a breach of statutory duty as it was the driver’s negligence which caused an accident where the claimant was injured. By this we can establish that Amir had breached the statutory duty which he owed a duty to as it resulted in an accident and by complying with the two conditions which can be proven by the claimant that Amir was negligent in his statutory duty towards others whilst driving where he knew he wasn’t fit to drive.

There is another vital test which reinforces a claim and that test is called the Caparo test and was established from the case of [20] Caparo industries plc V Dickman 1990. This test establishes if a duty of care exist for the claimant from the defendant. There are 3 essential parts to the caparo test which are foreseeabilty, proximity, and fair just and reasonable judgement. Foreseeablity judges if the negligent act could be foreseeable in Amir’s case his actions would affect others and the result could be foreseeable. Proximity looks at the relationship status between the claimant and the defendant and if is sufficient enough in Amir’s case we can see that the victims were closely involved. The judgement has to be Fair, just and reasonable towards the defendant this is a vital point to be covered as if this isn’t complete then the claim in tort would fail. By looking at the third factor we can clearly say that Amir is wholly liable for his actions which caused a train to derail.

It can be argued within normal situations, that Amir will be liable for his actions. This situation of Amir involves a motor accident and within this case it can be said that the insurance company would be the defendants on Amir’s behalf, as Amir was insured with them, so therefore the insurance company will have to pay for the compensation towards the victims and of their families. As to Amir driving illegally without insurance, then he will be breaching the Road Traffic Act (1930). As shown in the case of Monk v Warbey (1935), where the driver is uninsured and had caused an accident, although the driver couldn’t be sued as to the facts of him being uninsured. However in implying this to Amir’s case, the claimants will not be able to claim for the damages, if Amir’s was driving without being insured.

Betty was injured by Amir’s negligent actions and Amir is liable for this, Betties injuries weren’t life threatening and they could have been treated in the hospital but due to the incorrect treatment and the medical negligence she had suffered a heart attack and died. It can be disputed that Nurse Cathy owed a duty of care to Betty as she was a patient; here the causation chain has broken due to the incorrect injection given to the patient which makes the Nurse liable and Amir not liable for Betty’s death. The treatment given to Betty would be compared to the standard medical treatment of time which medical professionals approve of and that is done by using the Bolam test. This test arose from the case of [21] Bolam v Friern Hospital management committee 1957 and it was stated by [22] Judge McNair (if that failure or the doing of the act which results in injury then there is a cause of action).

The nurse failed to ask the patient if she had any allergies for the medication which is going to be given this shows that there has been a breach of duty of care and thus results in Amir not being liable for Betty’s death and no claim can be made towards him but if the Nurse can get a group of professional medicals and they carry out the same procedure then the Nurse is not liable and then Amir is liable but if not then she is responsible and the family can sue the nurse for being negligent in her duty.

Dev took the form of a rescuer even though the police told him to stay away but instead Dev went ahead to help the casualties at the scene and he was badly burnt. Dev had attempted to help people in an emergency situation where danger was in existence and therefore it is foreseeable that Dev is a victim and cannot claim for negligence as he decided with his own free will to enter into a situation where his own welfare was at risk. This is show in the case of [23] Cutler v United dairies 1933 where the claimant had a free choice. The case of [24] Haynes v Harwood 1935 also shows that the rescuer cannot claim for negligence by putting themselves at risk to aid others the other vital case which shows an importance is the case of [25] Baker v T E Hopkins and Son Ltd 1959 where the police had warned a rescuer to not get involved in the situation but the rescuer at his own free will chose to ignore this warning and went head and died looking at Dev’s situation he cannot claim for negligence against the police or Amir.

Gavin wasn’t present where the accident took place therefore isn’t able to claim this is shown in the case of [26] Bourhill v Chief Constable of south Yorkshire police 1992 as the claimant was a secondary victim and could not claim. Gavin saw his girlfriend in hospital after the accident he cannot claim in tort for this but if he was present at the scene of the accident even though he wasn’t directly involved with the accident (a secondary victim)then he could the case which shows this is the case of [27] McLoughlin v O Biren 1982.

It can be disputed that Harris lost his contract deal but the deal wasn’t guaranteed even if he was present at the meeting. By looking at the Caparo test the factors aren’t met in Harris’s case it was unforeseeable and Amir didn’t owe a duty of care towards that .The none-existence of duty of care being owed Amir cannot be liable and Harris wasn’t connected, the proximity lacked the case of [28] Bourhill v young 1943 represents this as there isn’t a close link. Lord Denning said in the case of Spartan Steel & Alloys Ltd v Martin & Co 1972 that economic loss is not to be recoverable and that the defendant is under no duty to the plaintiff so even though Harris has suffered an economic loss Amir cannot be held liable.

Imran is a fire officer who suffered traumatic stress since the incident and hasn’t been able to work due to the incident. Imran who is a fire officer can be seen in the form of a rescuer and it was his job and duty to rescue and aid people. It can be disputed that Amir cannot be held liable for the traumatic stress, in the case of [29] Hale v London underground ltd1993 it has been stated that the rescuer is owed a duty of care therefore showing that there is a duty of care owed to Imran. However in the case of White v Chief constables of south Yorkshire 1999 shows that there has been a different approach taken on the position of the rescuer as it was stated that a rescuer is a rescuer and cannot claim due to the fact that they are not primary victims and there isn’t a close relation to the victims and Imran doesn’t have a special or close relation therefore he cannot claim against Amir.