Compensation Bill

In our last issue at 24/ LL p110, we asked if it is really the function of the judiciary to have a sliding scale of duty of care depending on how each judge perceives the benefit to society of a particular activity? Denise Kitchener, the chief executive of the Association of Personal Injury Lawyers, continued this theme in the New Law Journal of 25 November. APIL regarded this as a prime opportunity for the Government to clarify misconceptions about the law relating to negligence through education. It has been obvious for a long time that there is a real need for education to make it clear that compensation is only available where there has been avoidable injury, and not for unforeseen accidents. With clause 1 of the Compensation Bill, the Government has actually created more confusion. The fundamental problem lies with the reference to ‘desirable activity’ and the inevitable future arguments about its definition. If a volunteer driving a group of boy scouts to scout camp, negligently injures a cyclist, the fact that the driver was undertaking what the court may consider to be a desirable activity could well mean, suggested Denise Kitchener, that the extent of his liability may be reduced. The fact that the claimant cyclist may also be considered to be engaging in a desirable activity will not, according to clause 1, be a factor in deciding negligence. This will clearly produce an unlevel playing field between the parties, which leaves the claimant vulnerable and which must be addressed. This could easily lead to a situation in which two claimants suffer similar injuries, in exactly the same circumstances, yet only one receives full and proper compensation because the judge decides that one of the defendants was engaging in a desirable activity. There is a real danger that injured people will be denied proper compensation as a result of clause 1. It has the potential to prolong litigation and impede access to justice for those injured through no fault of their own.