Lewis and Morris, ‘Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation’

Although culture is very difficult to define, we can say that tort rules, procedures and institutions both reflect and help determine the broad culture of the society of which they are a part. Concepts such as wrongdoing, causation, compensation and justice depend upon a cluster of popular beliefs and attitudes which are in turn moulded by the legal system. One aim of this article is to further illustrate how the tort system reflects particular cultural institutions and practices. But a more important theme is in conflict with this aim: we point to a dissonance between cultural attitudes and the reality of the tort system in practice. That is, we examine perceptions of tort derived from commonly held views about how the system of justice ought to operate and we contrast how tort, in practice, often does not correspond to these views.

This article is written in two parts. In the first part we consider images of tort deriving from traditional portrayals of justice. We set out seven commonly held views about the operation of the personal injury litigation system and then we contrast what actually happens in practice. We note the rhetoric and the cultural learning derived from long-held views of how the legal system is supposed to operate and we then compare the reality. We start by reflecting upon the scope of tort principles. Next we consider who brings and defends personal injury cases and what role is played by courts and judges in their resolution. We then consider how the key principle of fault is interpreted in practice and how the institution of insurance and its operation affects these traditional perceptions of how justice is delivered. Finally, we look at the reasons why damages are awarded and what amounts are paid.

Overall, we set out the following seven commonly held cultural views of tort and then, by examining the actual practice of personal injury, we undermine them:
1. Tort law is universal and applies to all accidents and injuries
2. Tort claims for personal injury are often brought and defended by individuals
3. Tort claims are determined in court by judges aided by lawyers and juries
4. Tort liability is largely dependent upon proof of fault and findings of law
5. Tort cases reflect the justice requirement of due process and fairness
6. Tort focuses upon compensating financial loss and serious injuries
7. Tort awards full compensation for losses suffered

In the second part of this article we look at another set of images which contrast with those set out in the first part. These images portray the tort system in a very critical way depicting it as a burden that undermines rather than underpins society. It is widely perceived that tort has encouraged a damaging compensation culture. Our propensity to claim is said to have increased to such an extent that we can no longer accept personal responsibility for our misfortunes. The system is thought to be awash with unmeritorious claims which have been prompted by an ambulance-chasing entourage offering to work on a ‘no-win no-fee’ basis. Exaggeration and fraud are to the fore and non-existent or unmeritorious injuries are compensated. As in the first part of the article, although with less force, we then show how these images have become distorted from reality. In particular, the majority of injured people still do not go on to claim compensation despite being encouraged to do so through widespread ‘no-win no-fee’ advertising. The exception arises in the context of road traffic accidents, where there is a strong culture of claiming. The significant increase in the number of personal injury claims over the last forty years is largely attributable to an increase of such claims. Whilst the extent of spurious and fraudulent claiming has generally been exaggerated, again, in the context of road traffic accidents complaints have more foundation. We examine why such a strong culture of claiming has developed in the context of road traffic accidents as compared with other types of claim. In conclusion, having shown how traditional and modern portrayals of tort differ from the reality, we show how tort in practice is heavily influenced by institutional arrangements.

Lewis, Richard and Morris, Annette, Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation (May 17, 2012).

First posted 2012-05-18 17:55:04

Leave a Reply