The Commodification of Compensation? Personal Injuries Claims In an Age of Consumption
| DOI | 10.1177/0964663910379490 |
| Date | 01 March 2011 |
| Author | Jonathan Ilan |
| Published date | 01 March 2011 |
| Subject Matter | Articles |
Article
The Commodification of
Compensation? Personal
Injuries Claims In an Age
of Consumption
Jonathan Ilan
University of Kent, UK
Abstract
This article critiques the opprobrium attached to the phenomenon of tortious
compensation seeking observable in those discourses which bemoan the existence of
a ‘compensation culture’ (or ‘litigation crisis’). It draws on ethnographic interviews
with professionals involved in advancing and defending against compensation claims
to demonstrate how issues of consumerism and commercialism have shaped
contemporary practice. Where participants locate a heightened claims-consciousness
among the socially marginalized, it will be argued that debates on claims-making must
be understood in light of consumerist desire and class-cultural judgement. Similarly,
where claims resolution practices promote commercial expedience over just entitle-
ment, it will be argued that populist concerns are fuelled by a distrust of abstract,
hyper-capitalist modes of responding to personal injury. The ethnography sits within a
frame that draws on late-modern social theory to locate both heightened levels of ‘liti-
giousness’ and its construction as somewhat ‘deviant’ within the same socio-economic
conditions.
Keywords
ethnography, late-modernity, personal injuries, public liability, socio-legal studies
Introduction
It is interesting that in the course of popular and academic debates on civil justice,
questions have arisen on the moral legitimacy of compensation seeking. From one
Corresponding author:
Jonathan Ilan, University of Kent, Canterbury, CT2 2NF, UK
Email: j.ilan@kent.ac.uk
Social & Legal Studies
20(1) 39–55
ªThe Author(s) 2011
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DOI: 10.1177/0964663910379490
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perspective, the notion that ‘deviance’ can somehow be ascribed to the enforcement of
legal rights seems perplexing. From another, the issue of entitlement is overshadowed by
the perceived effects of mass litigation on the moral and economic framework of society.
This article will demonstrate, however, that personal injury compensation is often
sought, negotiated, paid or withheld not as a direct result of litigation but in its ‘shadow’,
and not always due to concerns of entitlement, but on the basis of commercial and con-
sumerist logics. Drawing on ethnographic interviews with claims handlers and personal
injury lawyers, the article probes the real-politik of compensation seeking and responses
thereto within the context of road negligence claims against Irish Local Authorities.
Though focused on limited legal and geographic space, this material demonstrates that
professionals working on both sides of the claiming process view compensation seeking
and allocation as steeped in the consumer and market logics now prevalent in late-
modern society. The study pushes the compensation debate past its current parameters,
drawing on critical criminology and late-modern social theory to argue that ‘moral
panics’ around claims-making are more than a manifestation of media reportage, but are
a product of ambient anxiety resulting from the obfuscation tort’s moral schema in an
exclusive, individualistic and consumerist society.
Compensation claiming is replete with competing moral prerogatives: justly compen-
sating the victims of negligence, deterring unsafe practices and maintaining the rights
and fiscal integrity of potential defendants (see DeWees et al., 1996). Why is it then that
this latter consideration dominates populist discourse, where there is widespread concern
over the growth of a ‘litigation crisis’ in the US (see Haltom and McGann, 2004) and a
‘compensation culture’ in Britain and Ireland (Better Regulation Task Force, 2004;
Ryan, 2004; Williams, 2005)? Though hotly contested (see e.g. Galanter, 1983; Lewis
et al., 2006), these discourses recast the notion of compensation seeking as deviant and
destructive, underscored by greed and opportunism not genuine entitlement (see Better
Regulation Task Force, 2004: 5). Undoubtedly and well demonstrated in the American
context, media representations of litigation have done much to fuel this perception
(Haltom and McGann, 2004). Powerful corporate lobby groups dedicated to retrenching
the tort law propagate narratives which bemoan ‘the death of common sense’ and the
transformation of a nation of rugged individualists, to ‘a nation of victims’ (Haltom and
McGann, 2004; Howard, 1994; Sykes, 1992). This narrative is supported by resonant
media reporting practices which emphasize exceptional rather than quotidian claims,
strip them of their context and dramatically present them as spurious.
Criminologists understand the power of media reporting to stimulate fear and ‘moral
panic’ around crime in a similar manner, generating inaccurate public perceptions of its
incidence, severity and deviance (see Jewkes, 2004). Haltom and McGann (2004) see the
legal caricature of the ‘ambulance chaser’ as contributing to popular antipathy. Suspi-
cions over the motives of intermediaries are also noted in the British context, where the
Better Regulation Task Force (2004) impugns the aggressive advertising campaigns of
the ‘claims management industry’. In order to ‘harvest’ viable claims from public inqui-
ries and profit from arranging their resolution, various companies have been keen to pro-
pagate the perception that injury automatically equals award, which in turn has
denigrated average perceptions of the tort system. It is now often constructed as function-
ing without any regard to principles of responsibility or fairness. Cumulatively, lurid
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