If we want compensation we should exile the bankers

Anyone watching the excellent BBC Four series The Strange Case of the Law can’t fail to have noticed the irony inherent in his premise that the English common law system can be traced back to the simple compensation culture of early Anglo-Saxon Kent. If anything should dispel the myth that we are slipping, or indeed have slipped, into an alarming spiral of moral decline brought about by an American-style propensity to sue for anything and everything, this should be it.

Anglo-Saxon kings, it appears, were prolific legislators and provided a schedule of compensation for various kinds of personal injuries, including 12 shillings for cutting off an ear, 30 shillings for disabling a shoulder and 50 shillings for putting out an eye.  A finger was worth twice as much as a toe and knocking out a front tooth was assessed at a higher rate of compensation than knocking out a back tooth (which seems a bit unnecessary, given most of their teeth probably fell out of their own accord eventually anyway).

Killing someone attracted a wergild or ‘man price’, which varied according to social class, proving that it’s not only our compensation system that can be dated back to the dark ages.  It probably all sounds  a bit inappropriate to our modern-day sensibilities to equate everything, even the most traumatic crimes, with a monetary value, but as it replaced a system of vengeance and requital when it came to personal injury or death, it was probably a good thing.

But not so inappropriate we don't still do it.  The Criminal Injuries Compensation Scheme (CICA) awards compensation to the innocent victims of violent crime, including if a loved one has been murdered.  And there are instances of people bringing damages claims against those suspected of murder, most notably the parents of Stephen Lawrence and in the US the families of OJ Simpson’s ex-wife Nicole Brown Simpson and her friend Ronald Goldman (although acquitted in the criminal trial, Simpson was found liable for their deaths in a civil trial and ordered to pay £20 million in damages).

No-one is going to argue with that.  Equally, no-one is going to suggest that coming up with compensation amounts is an exact science, which is probably why I find the idea of personal injury tariffs, particularly when used by claims management companies in their marketing, misleading and somewhat distasteful.

A bit of Googling suggests I could get between £4,000 and £29,000 for a broken jaw in a civil claim, whereas if the same injury was the result of a violent crime I could get up to £8,000.  The maximum tariff for rape under the CICA is £11,000, whereas in the civil courts at least one victim received over £250,000.  This raises the question as to what makes one injury worth more than another and it doesn't give me much of an idea as to what I can expect to get.

I am not entirely sure I am relieved to find that, rather than this being a shocking indictment of the modern age, we have been doing it for centuries.  I'm not suggesting people shouldn't get financial compensation for injuries, just that I would feel a lot better about it if it weren't thrust at us from all sides as the main incentive for making a claim.

Contrary to what some of the popular press would have you believe, I am fairly sure most people are not motivated by money.  Sure, we’d all like a bit more of it, but in the main, so long as we are treated fairly and able to go about our business, we’re reasonably ok with the fact that some people are much wealthier than we are, providing they didn’t get that wealth through dodgy practices.

Although our compensation system derives from one based on a ‘man price’, the main rationale behind awards now is to put the aggrieved back into the situation they would be in had the accident or crime not happened, or at least as close as is possible.  This is where it becomes extremely unhelpful to bandy figures about.

If my foot was crushed by a bus driving onto the pavement, it would be very distressing but it probably wouldn’t have a massive impact on my future earnings in the long term.  But if I were a professional dancer (an amusing image), it would be a catastrophe.  If, on the other hand, I enjoyed dancing and had dreams of doing it professionally but was still at school, it can’t really have an impact on my future earnings since I don’t know what they’d be one way or another.

It therefore struck me as odd that part of the claim by a 6ft 5in young woman against an NHS trust was because the negligence that led to her excessive growth put paid to her ambitions to be an actor.  I am sure her condition, caused by an untreated tumour in her pituitary gland, is distressing, and I can understand why she feels she can’t trust the NHS with her ongoing treatment, but I am not sure the taxpayer should be paying compensation for shattered dreams.

I am aware that I am on extremely dodgy ground making a judgement on a case that I know very little about, but this claim as reported seems to go way beyond the intention behind our compensation system and fuels the argument that it is running out of control.

I would hope that finding out we were doing compensation long before there were personal injury lawyers would make it  difficult for politicians and the popular press to continue to claim that the rise of the compensation culture is threatening our moral fabric and, most importantly, raising the cost of our motor insurance premiums.

Far more important for our ethical health is what we do with the super rich, particularly those who haven’t operated fairly and who can do what they want with impunity because financial penalties provide no deterrent.  The Anglo-Saxons found a way around this by banishing anyone so rich or powerful ‘that he cannot be restrained from a crime’.  They were to be

 

 ‘led out of his native district with his wife and children, and all his goods, to any part of the kingdom which the king chooses, be he noble or commoner, whoever he may be – with the provision that he shall never return to his native district.  And henceforth, let him never be encountered by anyone in that district; otherwise he shall be treated as a thief caught in the act’.

 

There's surely merit in that: exile the bankers.