|
Date: 31 August 2006
COMPENSATION ACT RECEIVED ROYAL ASSENT 25 JULY 2006 - Part 1
The much-trumpeted compensation bill became law as the Compensation Act 2006 on 25th July. There are three parts to the Act plus a schedule which specifies particular provisions that may be made by statutory instrument to regulate the conduct of persons carrying out claims management services.
The parts of the Act are as follows:-
Part 1: Standard of care
Part 2: Claims management services
Part 3: General
The substantive provisions therefore, are in parts 1 and 2. These are quite detailed and therefore I have decided to cover them in three thrilling instalments……so don’t forget to log on next Friday to learn more about it. This week I am focusing on standard of care.
Standard of Care
Section 1 headed “The deterrent effect of potential liability” is directed at addressing the so called “compensation culture” or the practice of “blaming and claiming”. There has been public disquiet voiced in the media at the more extreme examples of claims for damages for negligence and breach of statutory duty which have started to appear in the UK. There have been many examples of somewhat extreme steps having to be taken to prevent liability attaching to a potential Defendant. The steps taken have ranged from schools issuing safety glasses to boys playing conkers to scout groups and other organisations cancelling events altogether.
First, the law:-
Section 1 provides that a Court when 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
-
prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
-
discourage persons from undertaking functions in connection with a desirable activity.”
I have not found it easy to think of an example to which this test could be applied. Many precautions are appropriate to make sporting or other outside activities safe and those will continue to be necessary if liability is to be avoided for accidents that occur as a result of a failure to take such steps.
However, let us take the example of boys playing conkers in the school playground. The school has a duty to ensure the children are safe from harm whilst in school and there probably would be an obligation to provide supervision of pupils to some degree in the playground. If we assume that a playground supervisor was present when a conker accident occurred and that a child was not being unduly aggressive in playing the game, section 1 may have the effect of convincing a Judge that conker-playing is a desirable activity and has been for centuries and that if the only way to avoid risk is to avoid the game, the standard of care should be limited to the provision of a supervisor carrying out his/her functions properly.
There is clearly a risk of what is known as satellite litigation to determine the meaning of “a desirable activity” and, presumably, there could be scope for appeals in cases where the Court chooses not to exercise its discretion to have regard to the tests in section 1. Note there is no compulsion to apply them.
Section 2, headed “Apologies, offers of treatment or other redress” provides that taking any of those steps shall not of itself amount to an admission of negligence or breach of statutory duty. This provision seems to have met with universal approval given that it encourages rehabilitation at the vital early stage. It takes away the perceived need to delay rehabilitation until liability investigations are complete.
Sections 1 and 2 come into force immediately and apply to England and Wales only.
Don’t forget to log in next week to learn about developments in relation to mesothelioma claims.
Derek Adamson
|
