A nation of spoilsports

Fear of litigation is stifling activities that are an essential part of British life, says Lord Justice Phillips. Yet this fear, he tells Robert Verkaik, is largely unfounded
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The Independent Online

Nicholas Phillips has never let his love for the law dull his sense of adventure. Four years after his appointment as the Master of the Rolls of the Court of Appeal, he continues to put much younger judges to shame by swimming and cycling huge distances, while still finding time to climb the odd mountain or two. In Who's Who, Britain's most rugged of judges lists his recreations as, simply, "sea and mountains".

It is easy to see why Lord Justice Phillips of Worth Matravers, 66, believes that sport and physical recreation are very important parts of the British way of life. But it is the law, or rather the fear of what the law can do, that is threatening the way we pursue these physical activities. And now Lord Phillips is prepared to say so.

He says it was during a visit to a school in East Anglia that he first realised to what extent our daily lives are being nannied by the state. Beside the school swimming pool he noticed a sign prohibiting people swimming alone: "I said: 'I see that kids aren't allowed to swim without adult supervision.' 'Oh no,' they said, 'this is for the staff. Our insurers have said we can't allow members of staff to swim unsupervised.' If that story is right, then it seems to me that insurers are being over-restrictive."

It is not the only story that suggests Britain is in the grip of a compensation culture. One council has cut down its horse chestnut trees so that parents won't sue if their children hurt themselves while collecting conkers. There have even been reports of doctors refusing to carry out certain medical procedures because they attract greater risks of being sued for clinical negligence.

"Some of these may be apocryphal, but it shows how far things are going," says Lord Phillips. "I feel very strongly that individuals should not be restrained from carrying out sporting activities that involve risk, like hang-gliding or going swimming."

He said a House of Lords ruling last year should have served as a "salutary" warning to people who tried to sue even though they accepted the risks before they took part in a potentially dangerous activity. "That was, in a way, a reaction to this type of nanny state approach," said Lord Phillips, who is head of civil justice in England and Wales.

But despite the "trenchant" statements contained in the judgement, local authorities' policies are still restrained by the fear of litigation. In the House of Lords case last year, the judges heard how John Tomlinson, 18, had broken his neck after diving into a lake and striking his head. The lake had been created by the local authority by flooding an old sand quarry. For many years, Congleton Borough Council prohibited swimming in the lake because of the danger. But despite the clear signs erected around the site, people ignored the warnings and continued swimming.

The case eventually went to the Law Lords who found in favour of the council, declaring that it had not been necessary for it to take more drastic measures to prevent people from swimming.

While hearing a different case considering a similar issue in March last year, Lord Phillips made it clear what he thought of Tomlinson's claim. He said then: "It seems to me that Tomlinson suffered his injury because he chose to indulge in an activity that had inherent dangers, not because the premises were in a dangerous state."

Lord Phillips says that despite the Law Lords' ruling, local authorities and schools still appear to be acting out of fear of being sued. Sporting bodies are also facing potential legal action when players are badly injured in freak accidents on the pitch.

Rugby, Lord Phillips's favourite sport, is the latest victim of the compensation culture. But last year Lord Phillips was one of three judges who ruled that a rugby player could sue the Welsh Rugby Union for injuries he suffered after a scrum collapsed. The ruling led to claims that it would open the floodgates to similar actions and change the world of amateur sport.

The case involved Richard Vowles, 29, who was injured in the final seconds of a match between Llanharan and Tondu in January 1998. Lord Phillips said the referee had failed to implement a law that minimises risks to players when there are no experienced front-row forwards at scrums. He should have called for a non-contestable scrum, in which no team is allowed to push.

But Lord Phillips tempered the impact of his judgement by saying that a referee's failure to implement a safety law was likely to be rare and "much rarer will be the case where there are grounds for alleging that it has caused a serious injury."

He added: "Serious injuries are happily rare, but they are an inherent risk... which those who play rugby believe is worth taking. We would not expect the much more remote risk of facing a claim in negligence to discourage those who take their pleasure in the game by acting as referees."

The appeal court also heard that the Welsh Rugby Union was facing serious financial problems and public liability insurers were considering excluding cover for sporting injuries. Lord Phillips said judges could not take notice of the WRU's finances, nor the intentions of public liability insurers.

These kinds of cases have helped to feed a belief that Britain's compensation culture is raging out of control. Last month, an investigation by the Government's Better Regulation Task Force concluded that the number of successful compensation cases is falling, but that businesses and other organisations are spending vast amounts of money protecting themselves from potential claims.

Task Force chairman David Arculus said the myth that there were "vast wads of cash" to be won was costing companies and the public sector hundreds of millions of pounds in unnecessary bureaucracy. "It's important that spurious claims are weeded out of the system," he said. "There are not vast wads of cash out there. The number of registered claims is falling at the present time - by 60,000 in the last year. But there may be lots of people out there willing to have a go."

Nevertheless, Arculus conceded: "There may well be a compensation-seeking culture or a claims culture."

The Task Force called on the Government to regulate claims management companies if they had failed to put their house in order by the end of next year.

Lord Phillips has ruled on a number of cases arising out of the collapse of some claims companies, but he sees no rush to force the "no win, no fee" industry to comply with strict new rules. He accepts that this may come, but thinks it is a matter for the Government, not the judiciary.

Perhaps he thinks it is too late because Britain has already gone down the American route and grown a culture based on a fear of compensation? "I think we are edging in that direction so far as the public's apprehension of being sued is concerned. It's a consequence of a perceived compensation culture that, on the statistics, seems to be unjustified."

So what do we need to do to combat the myth of the compensation culture? Lord Phillips has no hesitation in his answer: "I think local authorities should show a little more courage."