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GAZETTE
NOVEMBER
1995
I B EC and the Small Firms
Association to Corporation
spokespersons, its director-general,
Ken Murphy,
has invented the phrase
'negligence culture'.
According to Mr Murphy: " Compo
culture is a propaganda term being
used by certain vested interests here
who are trying to evade their
responsibilities.
" I f there's high level of claims it's
because there's a high level of
accidents caused by negligent
employers, and that is the problem
they should be addressing rather than
attacking those who are trying to
vindicate the rights of those injured by
that negligence.
" T he solicitors' profession is sick and
tired o f attempts being made to blame
solicitors for the allegedly high level
of claims in this country," and is "fed
up with being made'the scapegoat for
other peoples' tolerance of low levels
o f health and safety in the workplace
and on the roads.
I
.
" T h e fact is that Ireland is a risky
place in which to live, and the levels
o f health and safety which we as a
| society seem prepared to accept both
in the workplace and on the roads
inevitably leads to their being a large
number o f c l a ims ."
Rejecting figures released by I B EC
which suggest the level o f work-
related accidents is low here,
Ken
Murphy
said he wasn't "going to
accept figures from a vested interest"
and has produced evidence from
S I P TU and from other studies which
suggests the opposite. There is
considerable under-reporting of
accidents in the workplace, he argues,
and a truer picture can be gleaned
from the figures for fatal accidents at
work which, with an average o f 6 0
fatalities a year, is four times that
in Britain.
On the roads, meanwhile, according
to Murphy, " a motorist has a 5 0pc
higher risk o f being killed than in
j Britain and a 20pc higher risk of
serious injury."
As to the charge that there is a high
j
level of spurious claims: "how can
this be when claims are tested by the
courts? There is no question of
awards being made without
; negligence being, in the
, overwhelming number of cases, fully
established. Employers who make
j
payments do so either because a court
i has found them to be negligent or
1
because they believe a court would
i
find them to be negligent."
Lawyers say that those who argue the
contrary are either being disingenuous
I or don't know what they're talking
about. "In 'no foal, no fee' c a s e s ," one
! says, "prospective clients are,
' effectively, chosen by solicitors rather
: than the other way round, in the sense
! that no solicitor is going to agree to
bear the risk o f taking a case unless he
or she is convinced that, firstly, the
client has suffered an injury, and,
secondly, that it was caused by
negligence.
" T he client has to submit to a medical
1
examination by doctors for the
j
defendants, which may suggest either
j
that no real injury was sustained or
j
else that it is being exaggerated.
I
They may also commission reports
!
from engineers and other experts to
;
challenge the argument that the
injury was caused by their man 's
negligence."
The key argument o f the lawyers is
that without 'no foal, no f e e ', which
j involves the solicitor assuming the
! risk o f litigating, a great many
people would be denied access to
justice because, as
Michael McHugh
discovered in England, they couldn't
afford to take on the rich and
powerful.
| If this looks like lawyers claiming to
j
be Robin Hoods it is not an image
they are unhappy with. Indeed,
I according to
Ken Murphy,
the only
I ones defending workers these days are
! the lawyers and the unions.
And not just workers. Among cases
run in recent years on a 'no foal, no
fee' basis were a number of high-
profile medical malpractice suits.
When
William Dunne
was born
severely brain-damaged in 1982 at the
National Maternity Hospital, his
parents began a seven-year legal battle
which included a High Court victory,
a Supreme Court appeal, and a
retrial during which a number of
dramatic court room developments
I
cast serious doubt on the hospital's
evidence and following which he was
awarded $ 4 0 0 , 0 00 in an out-of-
court settlement.
The case could never have been
run without the willingness of his
lawyers to bear the risk of not
being paid.
Kenneth Best,
brain-damaged after
receiving a whooping cough vaccine
back in 1969, sued the We l l c ome
Foundation and a doctor, losing in
the High Court but winning on
appeal to the Supreme Court, where
he was awarded record damages
of £ 2 . 7 5m.
And the lawyers do bear a real risk
because they must prove negligence.
When eight-year-old
Beatrice Lindsay
entered hospital in 1982 for a routine
appendix operation, she suffered
irreversible brain damage similar to
that of the woman in the recent right
to die case. Though the Professor of
Anaesthetics at UCG gave evidence
that the likely cause of her condition
was the withdrawal of oxygen to a
dangerous degree, this was not
sufficient to establish negligence and
a High Court award o f $ 3 1 9 , 0 00 was
overturned by the Supreme Court
on appeal.
Modern Irish negligence law is
peppered with important judgments
that followed 'no foal no fee' cases
and where justice would never
otherwise have been done. It seems
the lawyers are now determined to
trumpet the fact.
After years of relative quiescence on
their part, apparently in the belief that
the merits of the system were self-
evident to the public, they have now
taken the offensive.
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