...would still stink. A deliciously apt paraphrase of the Bard given another story in the paper today about the "compensation culture", this time focusing on schools where, among other ludicrous wastes of taxpayer money, £3,000 was paid out because some little darling scratched themselves on a rose. We've read this sort of thing so much that we've become immune to it, which is dangerous. Here at Marshside we are not so blase. We will fearlessly investigate just what's going on here and see if we can find a solution. Gird yourselves!
The root of this is tort. That's not some kind of Germanic dessert but a branch of common law which, as you will all know, is that part of our law not written down anywhere but which has evolved over the centuries and is in effect made by judges as a consequence of their judgements which set precedents which must be taken into account in subsequent cases. There's about 13 torts (can't remember exactly), including assault, libel and slander. The one at issue here is negligence. A successful action against someone for negligence must show that the defendant owed the alleged victim a "duty of care", that the duty was breached and that the defendant suffered some real loss. A "real loss" normally means that it has a quantifiable monetary value. Not quite sure how a small child can lose money as a result of a scratch but the essence of a claim here would be that the school owed the child a duty of care (little doubt about that) and that it breached that duty by allowing children to come into too close proximity with those lethal rose thorns.
Now you might think this could easily be defended along the lines of: roses being a regular occurrence in the UK, including in the gardens of many children, not to mention public parks, etc., no "reasonable man" (a very important person in law) could regard the existence of unguarded roses as being in any way dangerous and thus this cannot be considered a breach of a duty of care. You might also add in that the child suffered no financial loss, neither immediately nor as a consequence of some kind of permanent disfigurement which could damage their future love life or modelling career (a lawyer acting for the claimant would suggest this might be the case. Well I would). No further witnesses, m'lud. So, having seen this off, how come we end up shelling out £3,000?
This is where the lawyers come in, not to mention the insurers. The school, having received a threateningly worded letter from someone at "ambulance chasing lawyers R us" they would have chucked it in the direction of their insurers. They in turn would have pushed it over to their own pet legal team who would have advised that although the ambulance chasers had a pretty feeble case, the costs of defending it, coupled to the costs in the event of losing it (even if a remote chance) meant that perhaps they should try and settle out of court and, having exchanged a letter or two with their brothers at law, advised that £3,000 would do the trick and that that seems like a sensible deal. Great. So the taxpayer (yes that's you, pay attention) has forked out £3,000 to these nasty little people plus the insurance premium paid by the school, out of which their own lawyers get a fee for their learned advice. Not to mention the insurance company's own costs and the time/cost of the school staff. Oh, and no doubt the school (i.e. you) then spent even more money by either removing or fencing off the offending roses. The net result is that a chunk of the money that comes out of your pocket to pay for our children's education has in fact gone on lawyers, insurers, school admin and fencing contractors. Educational benefit? Zero, unless you count the benefit of children learning what a rose looks like and that its stems are covered with sharp thorns. I don't know about you but I didn't have to go to school to learn that.
So what's to be done? One obvious problem is the cost of lawyers. It's a mystery as to what it is that keeps their fees so high. Of course the Law Society and the Bar Council do their best in this respect, plus the government does its bit by constantly passing new laws (every new law creates more work for the lawyers, if it does nothing else, and often it doesn't.) Perhaps most importantly, what's considered "reasonable" in terms of legal fees is ultimately decided by the judges who are...lawyers. So it's a cosy clique but it's still strange that the laws of supply and demand don't seem to apply to legal costs.
Then there's the evils of insurance. A former employer of mine, a very large UK company, decided some years ago not to have any insurance at all, except where it was legally obliged to. The logic is that over time, the costs of insurance will be equal to the costs of any claims plus the costs of the insurance company. So deal with the claims yourself and cut out the latter (this has become known euphemistically as "self-insuring". It sounds more professional than "not insuring"). More recently, another employer of mine forked out a six figure sum every year for insurance but virtually never made a claim. A colossal waste of money it could ill afford. How many of us have, over the years, received more in claims than we've paid in insurance premiums? Bad luck if your house burned down, you probably answered yes but you're the only one. As insurers can bung the cost of claims on premiums and as all insurers are likely to face similar levels of claims, there's little incentive for them to battle against high legal fees and do whatever else would seem sensible to keep claims costs down. (Something else which contributes to the maintenance of excessive legal fees). Plus, you may have discovered that if you do make a claim, the combination of your excess and the small print probably means they don't pay out and if they do, watch your premium rise next year! It's a lose/lose.
It sounds like I'm arguing that all insurance is a waste of time and money. Most of the time it is, exceptions being of the house burning down variety. Translate that to our rose-infested school and what that means is that they should only have insurance against major claims (e.g. roses turn out to be concealing triffids which eat child). Or more to the point, as they are part of the state and the state is obviously big enough to self-insure, they should have no insurance at all.
Given that the state is covering the school's backside, the school should nonetheless take any claims as a hit to their budget. In this scenario, they might have a different way of looking at solicitors' letters and would have an incentive to fight them. They need to understand the facts of the world as outlined above and especially, that the law is nothing like as complicated as lawyers would have you believe. Let common sense be your friend. take a leaf out of the book of that most sued entity, Private Eye. In the now legendary case of Arkell vs. Pressdram (Pressdram being the company that publishes Private Eye), Arkell's lawyers wrote a letter which concluded: "His attitude to damages will be governed by the nature of your reply." Did Private Eye make panic-stricken calls to their insurers or lawyers? They did not. They wrote back, saying: "We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off."
Problem solved!
