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"Hell hath no fury like a woman scorned"
We are all guilty, to a lesser or greater extent, of repeating things that we hear without confirming their accuracy. That is how views and opinions, often entirely flawed transubstantiate into fact and is the problem with received wisdom.
Take the quote above. It is one we all know and I'm sure that most people will have used it at some point. Yet it is incorrect. It is a misquote. What William Congreve (perhaps the most misquoted play write in literary history given that his other famous line was "Music has charms to soothe the savage breast" and not "beast" as most people believe) actually wrote was "Heaven has no rage like love to hatred turned. Nor hell a fury like a woman scorned."
You might think that such things do not matter. But they can and do, sometimes very profoundly.
Consider those two magical little words - "compensation culture". Magical because, it seems, that the world accepts their veracity, has fallen for their wiles, and yet the narrative of compensation culture is plainly wrong.
It is a narrative created and fuelled by ill informed journalists looking for an easy and sensational headline. The problem with that is that it has been widely accepted as fact. It has become received wisdom. But behind the apparently comical tales about conkers and snow ball fights in schools lies a fundamental issue about rights and access to justice.
The narrative of compensation culture holds that there are too many people claiming compensation, and that the number of people making claims is rising each year and that something has to be done to stop and reverse the trend. Any statistician can confirm that in Scotland the factual assertion that underlies the compensation culture narrative is simply false but as lawyers we must ask ourselves an entirely more fundamental question: Why have we, for so long, allowed a press campaign to rage which ultimately serves to apply pressure upon individuals not to exercise rights afforded to them under the law?
There was a time when there were rights, remedies and the courts; neither the press nor public opinion had any role to play in determining the scope of individual’s rights or when an individual was entitled to seek a remedy.
Surely we must ask ourselves how we have allowed our profession to sleepwalk into the current situation? Whether one acts for pursuers, defenders or has nothing to do at all with civil litigation, it must be recognised that the newspapers have no role to play in defining the scope of citizens’ rights. It is time we were bold enough, as a profession, to do our job and to be proud about doing our job. Rather than fearing the media we should be clear that it is our job and that of the courts to define and determine rights and not that of journalists.
In the context of received wisdom even a small variation can make a big difference. Returning to the compensation culture myth, I agree with much of what is suggested. There are too many claims. Things have gone too far. The trend needs to be reversed. But what the narrative misses is the most obvious point of all. It fails to ask why. Why are there too many claims? There are of course too many claims because there too many accidents. And the way you resolve this problem is by reducing the number of accidents and not by applying pressure on victims of accident, injury and disease not to exercise their rights. It is ironic that in fact it is my experience that a very effective means of bringing about change to improve safety standards is the compensation claims process. In other words the nefarious pressures of the narrative of the compensation culture damages rights and safety standards. To improve safety we should encourage not discourage people to exercise their rights and seek appropriate remedies when injured as a result of others negligence.
Image Credit: BBC