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June 18th 2012

Personal Injury

Fighting for the rights of the underdog?

Fighting for the rights of the underdog?

Listen to any debate about law in general, or the English legal system in particular, and it probably won’t be too long before you hear it said that the system of justice in this country is perceived to be “the envy of the world”.  Those who have suffered injustice (perceived or real) at it’s hands will no doubt seek to disagree, but in the age of 24 hour instant news coverage from around the world, we increasingly get the chance to see how the legal systems in other countries  compare to ours,  and to note that the checks and balances which we take so much for granted from those who oversee our society, are often conspicuous by their absence elsewhere.

Listen to any debate about law in general, or the English legal system in particular, and it probably won’t be too long before you hear it said that the system of justice in this country is perceived to be “the envy of the world”.  Those who have suffered injustice (perceived or real) at it’s hands will no doubt seek to disagree, but in the age of 24 hour instant news coverage from around the world, we increasingly get the chance to see how the legal systems in other countries  compare to ours,  and to note that the checks and balances which we take so much for granted from those who oversee our society, are often conspicuous by their absence elsewhere.

At the core of the legal system of which we are so proud, is enshrined the basic principle that the state should not and must not interfere with the rights of the individual, unless  it has  a recognised and legitimate reason to do so, and (most importantly) a mandate granted by either the public (via its elected representatives in Parliament) or judges (whose job it is to apply, develop and interpret the laws that Parliament enacts, and fill any gaps in that law in line with a set of principles which themselves develop and evolve as society does the same).

The circumstances in which people can claim compensation for the  injuries which they suffer in every day lives have developed over the years, often a step or three behind any changes in society itself which have increased or created new risks of injury.

As the Industrial Revolution brought people into the cities and towns during the eighteenth and nineteenth centuries, and therefore into closer proximity with one another than ever before,  so the chances for one person to harm or injure another increased. Coupled with the increasingly dangerous ways in which people were required to make a living, in the company of machines developed for speed and profit by factory owners who saw their workers as nothing more than disposable commodities, it became clear that if the legal system was to fulfil its brief to protect the rights of the individual, it needed to further develop its procedures for dealing with what happened when things went wrong, and people got hurt.

What the law had to decide was this.

Where should the loss fall, when a person is injured ?

Should it fall on the person who has been injured, or should it fall on the person who was responsible (in whole or in part) for that loss ?

The mechanism which the law decided to use to solve this diemna was that of fault (later developed more fully into the principle of negligence which is so established today), and it’s hard to develop any logical or even partly fair argument against that principle.

An innocent victim of an accident has not (by definition) asked to be injured, maimed or killed, and have their life and/or that of their families disrupted.

By contrast, in order to be held legally liable for an accident, a defendant must be found (or admit) to have acted without taking appropriate care for the safety of those who may reasonably be seen to be at risk of injury from their carelessness.

If loss results from an injury (whether just to the quality of life for the injured person or the financial losses which flow from that), it still amounts to a net loss to society as a whole.  It doesn’t go away, just because a person fails to make a claim for compensation.

Claims  seek merely to allocate the loss to the person or organisation who could reasonably have prevented the injury from having occurred in the first place.  If that person happens to be the person who has been injured, then the loss stays with them, otherwise they can elect to shift the loss to any third party at fault.

It’s a simple, and most importantly, fair procedure, which forms no small part of the overall legal system which creates such envy (and generates  so many attempts at replication) across the world.

However, a legal system cannot serve the interests of those it has been constructed to protect, unless those same people know what their rights are, and have the necessary access to the law to enforce those rights.

Strange then that the current government seems to take such exception to adverts which notify individuals of their rights to seek compensation if they have been injured through the fault of others, by citing such publicity as evidence of a so called “compensation culture”.  Strange too that the  practice of solicitors offering to deal with claims on a “no win no fee” basis is identified as the cause of this mythical culture, when in fact that system is both self regulating (by making sure that lawyers only take on claims which have reasonable chances of succeeding) as well as providing the  access to justice which is so crucial a part of making this part of our legal system available to all individuals who have a reasonable case (and not just the rich).

Add to this the threatened changes to personal injury procedure which look likely to deprive accident victims of the right (in practical terms) to be legally represented unless their claims reach a financial value of £5,000 (five times the current threshold),  and its hard not to come to the conclusion that the pride we have taken in our legal system and the rights which it purports to uphold, has in fact been misplaced, or at the very least, that the system has been put into the temporary custody of those who do not recognise what a precious and vital edifice they are currently seeking to restructure just for the sake of it.

If the current government gets its way, then our legal system is going to need a new slogan :-

The English System is the envy of the world, so long as you don’t actually want to use it, only want to represent yourself, or have plenty of money”.

Doesn’t quite have the same ring to it, does it ?

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