I often hear clients bemoaning the fact that “we live in a litigious society”. Come to think of it, I say it myself. But is it true?
I suppose it is a matter of opinion. Recently, I came across a rather interesting judgement in Sanderson and Others v Sonae.
Briefly, in 2011 a fire broke out at Sonae’s factory at Knowsley, near Liverpool. The fire generated a considerable plume of smoke. Moreover, this plume contained various toxic fumes, chemicals and particulate matter.
Over 16,000 individuals brought a claim. Were all these claimants genuine? It wouldn’t be surprising if a small percentage were in fact fraudulent or over-stated. You might wish to guess at this percentage and your view might be coloured by your attitude to our so called litigious society.
Sonae admitted a breach of duty but questioned both causation and quantum. Mr Justice Jae heard 20 test claims in July 2015. The evidence focused on “plume modelling” and likely toxicity within the plume.
The claimants tried to establish that it was sufficient for them to prove that Sonae’s breach of duty contributed to the risk of injury. The evidence showed that only a small number of claimants were actually close to being “at risk” and then for only brief periods. Mr Justice Jae found the claimants didn’t suffer any material exposure and moreover their injuries, such as they were, did not warrant compensation.
Justice Jae took a dim view of the conduct of some of the solicitors who acted for the claimants. Some recruited claimants using cold calling tactics. Some set-up ‘pop-up’ shops. Some mislead claimants into believing prior cases had already succeeded. One solicitor was described in the judgement as “a poor, rather self-important witness who was acting in the interests of his firm rather than the interests of his client”.
So do we live in a litigious society? Sanderson and Others V Sonae would suggest so although it is an unusual case. In our profession we do from time to time see claims from individuals who have suffered terrible injuries at work and no-one would begrudge fair compensation being paid to these individuals. In many, if not all, such cases, financial compensation is simply inadequate when compared to the pain, anguish and injuries suffered. In our experience, insurers really demonstrate their true worth in those circumstances.
But we also see a not insignificant tranche of personal injury claims that are spurious, exaggerated or just downright fraudulent. These days, insurer companies invest considerable sums in detecting and prosecuting fraudsters, with ever increasing rates of success. And that just leaves the most frustrating type of claim; the claimant whose case is spurious and yet insurers seem inclined to settle. If I had a pound for every such incident.
In our experience, insurers will only defend a claim in the minefields that are the courts if the evidence to do so is complete and robust. High quality risk assessments, method statements, training records, audits and so must be in place. And that is why we are proactive (or ProAktive)!