Gregor Woods: Let's run the risk of reversing our compensation culture

Lord Young's brief was to consider why a "compensation culture" had taken hold and to propose solutions. His pronouncements prior to publication of the report indicated he had no doubt that there is a serious problem. He had "heard about" toothpicks being banned from a restaurant on safety grounds, children being required to wear helmets when walking under horse-chestnut trees and ancient English cheese-chasing festivities being banned, for example, and was going to sort out such idiocies.

Many of these stories look rather different when examined beyond the headlines, as his report makes clear. Few would doubt, however, that something has gone awry with our perception and management of risk over the last few years, to the detriment of traditional social events and, in particular, activities for children organised by schools and voluntary institutions.

It will be a surprise to many that evidence that personal injury claims have risen inexorably in recent years is far from clear. In fact, the last major study of compensation claims concluded that there had not been a noticeable increase in the number of personal injury claims, although the average cost of claims to insurers and bodies such as the NHS had increased significantly for a variety of reasons. Lord Young's report essentially accepts that the issue is one of perception.

Perhaps we don't live in a compensation culture after all, but rather one that has become increasingly, and dispiritingly, risk-averse

because of the perceived threat of litigation. We have certainly become more risk-aware. The "risk assessment" tool, an attempt to impose some rationality on the assessment of the risk in the workplace, has blown like dandelion seed across society and taken root in practically every sphere of group activity.

That, in itself, need not be seen as retrograde. I do not want my

child's school taking him up a mountain unless someone competent has through the risks and taken suitable precautions. Children still die, tragically, on poorly managed school trips, if not by being hit on the head by conkers in the playground. The danger comes when such

assessments are poorly thought-through and undertaken by untrained individuals, or are used unthinkingly as justification for banning any activity which carries some risk, however small or remote.

Lord Young's report recognises that and proposes practical steps to limit the burden of risk assessments, particularly in relation to organisations operating in "low hazard environments". These environments are not defined in the report, but examples are given: offices, shops and schools.

It is also true that employers, over the last 15 years, have had to come to grips with a bewildering array of health and safety regulations governing workplace activities. Employers have found they have had to

take on health and safety officers to review their work processes and ensure compliance with the law. The best have seen a significant reduction in accidents as a consequence. Lord Young proposes that the legislation be simplified and consolidated, and invites the HSE to

produce clear separate guidance for small and medium-sized

businesses "engaged in lower risk activities".

The claims landscape is not a uniform one. Compensation "fever" can and does take hold in some areas. The offices of large public sector employers seem to be particularly hazardous, with union-appointed solicitors regularly supporting claims that many would regard as almost laughably trivial. Ironically, such workplaces are subject to the most detailed health and safety policies. It is as if the focus on health and safety has become so obsessive that the effect has been to

inculcate a greater willingness to bring a claim.

The introduction of Conditional Fee Agreements as the principal means

of funding personal injury claims has unquestionably caused claimant legal costs to spiral, frequently out of all proportion to the value of the claim itself. Lord Young recognises this and proposes, amongst

other initiatives, the extension of the fixed fee scheme currently operating in relation to motor claims below 10,000 to all injury claims.

If Lord Young's proposals tackle the burgeoning cost of litigation,

without reducing access to justice, all but those with a vested

interest in maximising legal costs will cheer. If he manages to reverse the culture of "risk elimination", at the expense of all else, he

should be carried shoulder high through the streets – provided, of course, that a suitable risk assessment has done beforehand.

Gregor Woods is a partner at Kennedys Solicitors in Sheffield.