The Compensation Culture: Cliché or Cause for Concern?
| Date | 01 December 2010 |
| Author | James Hand |
| DOI | http://doi.org/10.1111/j.1467-6478.2010.00522.x |
| Published date | 01 December 2010 |
JOURNAL OF LAW AND SOCIETY
VOLUME 37, NUMBER 4, DECEMBER 2010
ISSN: 0263-323X, pp. 569±91
The Compensation Culture: Cliche
Âor Cause for Concern?
James Hand*
The `compensation culture' has featured frequently in the popular
press over the last decade. There have, however, been comparatively
few academic studies and such studies as there have been have largely
focused on personal injury claims. A compensation culture, if it exists,
could extend much wider than that. This article compares the exponen-
tial increase in the use of the term `compensation culture' in the
national printed media since 1995 with available statistics relating to
the Queen's Bench, County Courts, and employment tribunals. Far
from spiralling upwards, these statistics show a broad decline across a
range of claims with the exception of claims before the employment
tribunals, where the government has created a slew of new heads of
claim. In order to counter the misconceptions founded by the popular
media, and to allow for greater scrutiny, more attention should be paid
to the collection and dissemination of judicial and claims statistics.
INTRODUCTION
The `compensation culture' and comments about the increasing slide
towards American litigiousness frequently appear in the media. Stories about
people suing after injuring themselves with, for example, cups of coffee,
through using recreational facilities, or by consuming tobacco or fast food,
and articles decrying the removal of hanging baskets and playground slides
evidently make for good copy; national newspaper articles concerning the
compensation culture have increased exponentially since the mid-1990s.
1
569
ß2010 The Author. Journal of Law and Society ß2010 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Portsmouth, Richmond Building, Portland
Street, Portsmouth PO1 3DE, England
James.Hand@port.ac.uk
I should like to thank Vivien Pickford, Roger Welch, Damian Carney, and the anonymous
referees for their guidance and comments on earlier drafts. Any errors are my own.
1 From three times, twice, and seven times, in 1995, 1996, and 1997, to highs of 259,
269, and 459 times in 2002, 2003, and 2004. The number has fallen since then but it is
still much higher than in the late 1990s; there were 134 mentions in 2006 and 2007
and 111 in 2008 (LexisNexis search).
Peysner considers such media clamour to be a hindrance to a sensible debate
on seeking redress, with much of the media hype spuriously making the
importation of a United-States-style compensation crisis into an apparent law
of nature.
2
A further hindrance has been the lack of academic scrutiny, but
there is now an emerging literature on the topic.
3
This literature, while
recognizing that the compensation culture could be defined more widely,
tends to focus on personal injury claims. This article seeks to take a broader
look at available statistics, but first considers the background to the
newspaper coverage of the compensation culture.
570
2J.Peysner, `Compensation crazy ± too much claim and blame?' Times,28May 2002.
Such fears fail to take into account that United Kingdom legal and social systems are
very different from those of the United States. Indeed, Kritzer's study found these
differences to be cultural as well as legal: `the stereotypical images of the stoic
English person and the complaining American are more than just stereotypes' (H.M.
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). He went on to agree (p.
426) with Atiyah's dismissal (P.S. Atiyah, `Tort Law and the Alternatives: Some
Anglo-American Comparison' (1987) Duke Law J. 1002) of contingency fees as an
explanation for Anglo-American differences, not least because contingency fees are
also forbidden in Australia where the claiming pattern does not resemble the English
one but is much closer to that of the United States.
3See, for example, K. Williams, `State of Fear: Britain's ``Compensation Culture''
Reviewed' (2005) 25 Legal Studies 499; R. Lewis, A. Morris, and K. Oliphant, `Tort
personal injury claims statistics: is there a compensation culture in the United
Kingdom?' (2006) 30 J. of Personal Injury Law 87; A. Morris, `Spiralling or
Stabilising? The Compensation Culture and Our Propensity to Claim Damages for
Personal Injury' (2007) 70 Modern Law Rev. 349±78; Better Regulation Task Force
(BRTF), Better Routes to Redress (2004).
Figure 1. Compensation culture: claims versus articles (claims are for
the Queen's Bench, County Courts, and employment tribunals; articles
are articles in national newspapers)
ß2010 The Author. Journal of Law and Society ß2010 Cardiff University Law School
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