Tort Law Culture: Image and Reality
| Date | 01 December 2012 |
| Author | Annette Morris,Richard Lewis |
| DOI | http://doi.org/10.1111/j.1467-6478.2012.00600.x |
| Published date | 01 December 2012 |
JOURNAL OF LAW AND SOCIETY
VOLUME 39, NUMBER 4, DECEMBER 2012
ISSN: 0263-323X, pp. 562±92
Tort Law Culture: Image and Reality
Richard Lewis* and Annette Morris*
This article highlights two contrasting images of tort. The first reflects
the traditional portrayal of justice, depicting tort as an independent
`natural' system of rules of universal application forming the founda-
tion of a just society. The second is more recent and relates to the
perceived development of a damaging compensation culture. Focusing
on personal injury litigation, we show how these portrayals differ from
the reality of tort. In practice it is heavily influenced by institutional
arrangements: the importance of both welfare provision and liability
insurance is highlighted, and the effects of a `no-win no-fee' claims
market are examined. The operation of tort is very much affected by
commercial interests and the economic demands of the institutions
which surround it. Overall we conclude that the images of tort fail to
reflect how the personal injury compensation system actually operates.
Although culture is very difficult to define,
1
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.
2
To help with
562
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF10
3AX, Wales
LewisRK@cf.ac.uk MorrisA7@cf.ac.uk
This is a revised version of an article first published in the Journal of European Tort Law
(2012) in a Special Issue on `The Cultures of Tort Law in Europe'. It appears here with
the permission of the JETL publisher, Walter de Gruyter GmbH & Co KA, Berlin/New
York. The paper was commissioned by the European Centre of Tort and Insurance and
the Institute for European Tort Law and was presented in Vienna in April 2012 at a
plenary session of the 11th Annual Conference on European Tort Law. For further
information, see www.ectil.org and www.etl.oeaw.ac.at. We are especially grateful for
the comments of the anonymous Journal of Law and Society reviewers and for those of
our former colleague, Ken Oliphant.
1 R. Cotterrell, Law, Culture and Society (2006) 83.
2 D.M. Engel and J.S. Engel, Tort, Custom and Karma (2010) 11; M.S. Shapo, Tort
Law and Culture (2003).
problems of definition, Nelken suggests: `Legal culture, in its most general
sense, is one way of describing relatively stable patterns of legally oriented
social behaviour and attitudes.'
3
One aim of this article is to illustrate how
the tort system reflects particular social institutions and practices. But a more
important theme is in conflict with this aim: we point to a dissonance
between social 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.
In the first part of this article 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
social attitudes derived from long-held cultural views of how the legal
system is supposed to operate and 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 operation of insurance affects 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
seven commonly held views of tort and then, by examining the actual
practice of personal injury, we undermine them.
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 respon-
sibility 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 compen-
sated. 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 such claims.
We examine the reasons for this. Whilst the extent of fraudulent claiming has
563
3 D. Nelken, `Law, Liability and Culture' in Fault Lines: Tort Law as Cultural
Practice, eds. D.M. Engel and M. McCann (2009) 22.
ß2012 The Author. Journal of Law and Society ß2012 Cardiff University Law School
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