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Compensation Culture

This writer remembers, he thinks correctly, that the phrase “compo culture” was coined by a PR spokesman for Dublin Corporation (now Dublin City Council). Probably the spokesman was simply adapting a phrase coined elsewhere, because the title to this post is known in the UK and, it appears in Australia.

Taken literally, we can confidently say that it is a universal social principle that compensation be paid where loss is suffered and the liability to pay for that loss lies with someone other than the victim.

This formulation is very wide; it will cover cases of injury arising from negligence, say, (See HERE for a treatment of Tort law in common law jurisdictions) but also claims for indemnity under an insurance contract.

The principle is not undermined by individual failures in making payment.

Taken with the provisions of domestic law a regional example of that universal principle is to be found in the European Convention on Human Rights (Article 6).

We are now, unfortunately, familiar with some compensation principles which, by arcane means, apply when banks fail. Certain creditors of such banks are compensated for their losses arising from default. The compensation is so certain that the default is scarcely admitted and is, for practical purposes, imperceptible. By those arcane means the liability to pay the compensation is passed to the citizens of the country responsible for supervising the failed bank. (The arcane means are not legally binding means).

It was always clear that the phrase “compo culture” was not an attempt to deny any compensation to any and all claimants; it was directed against one small class of persons, those persons who had been personally injured by negligence or breach of statutory duty. In effect, it was a brazen effort, if taken literally, to repudiate the obligation on wrongdoers of remedying the losses they had inflicted on others.

Life is complicated; consequently it has come about that the liability to pay compensation for personal injury frequently rests on both a liability in negligence and a liability under a contract of insurance. We see this in Domican v AXA Insurance Ltd. [IEHC] 2007 where the judge remarked that the plaintiff and the defendant had a relationship with each other (arising from the fact that the defendant had agreed to insure and indemnify a person whom the plaintiff claimed had injured him through negligence). In the UK that relationship is expressed in a civilized way in the Third Parties (Rights Against Insurers) Act 2010.

Ireland has no such legislation (and no proposals to remedy the situation). The UK made such provision as far back as 1933.

The Irish State has a very poor record in defending the constitutional right to compensation for personal injury. That should come as no surprise when we reflect on the reason why the Minister for Defence (and Ireland consequently) became liable to compensate soldiers in what was known as “the Army deafness cases”. A civil servant had consciously decided not to make provision to protect the hearing of soldiers from exposure to loud and damaging noise. That decision was recorded and the record was obtained by the claimant soldiers, all of whom could show they suffered hearing loss or damage following that decision. (Even without the decision the State would have been liable; it was not a novelty that loud noise is dangerous). The reason for the poor record is straightforward; Ireland clearly has (or had) a very poor quality of civil servant and politician. (In the Irish Times of 11th December 1997 a headline read; “Smith says deafness claims are wrong and immoral”. Smith was the Minister for Defence.)

It is generous to say Ireland’s record is poor on this issue. Ireland is malevolent on the point. See HERE and HERE for this writer’s opinions.