The risks of a killing

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Tue, 16 Nov 2004 17:43:06 -0800

The risks of a killing

 

 

<http://www.guardian.co.uk/comment/story/0,3604,1352227,00.html>

The risks of a killing

 

Compensation culture is a myth - ask the thousands who will die this

year from asbestos

 

George Monbiot

Tuesday November 16, 2004

The Guardian

 

It was the most impressive exercise in democracy the world has ever

seen. Hundreds of millions came out to vote. The dollars queued for

hours in the rain and sun. The result was indisputable: the candidates

with the most money won.

 

No constituency gained more from the US election than the dollars

belonging to a company called WR Grace. On November 3, its shares rose

by 14%. By November 5 they were up 26%: the highest they had ever been.

It wasn't Bush's victory the stockbrokers were celebrating as much as

the defeat of Tom Daschle, the leader of the Democrats in the US Senate.

 

One of the few courageous things Daschle did was to oppose a law

restricting the amount of compensation companies will have to pay to the

victims of asbestos. Daschle believed that firms such as WR Grace, which

used to manufacture asbestos insulation, should have to pay the full

cost of the deaths and injuries they caused. Big business exercised its

democratic rights to the tune of $14m, and the Republican John Thune was

duly elected. Now the law will almost certainly be passed, and sufferers

from one of the modern world's nastiest diseases - mesothelioma - will

be paid roughly half the compensation they were due.

 

This is almost universally recognised as a Good Thing. Over the past few

years, the press in the United States has presented us with the

heart-wringing spectacle of bed-ridden multinationals gasping for money.

On this side of the Atlantic, where companies that used asbestos are

facing a new round of lawsuits, the result was greeted as a defeat for

something we call " compensation culture " .

 

Compensation culture has usurped political correctness, welfare cheats,

single mothers and new age travellers as the right's new

bogeyman-in-chief. According to the Confederation of British Industry

(CBI), the Conservative party and just about every newspaper columnist

in Britain, it threatens very soon to bankrupt the country.

 

That there is no evidence to support such a claim, is, as always,

irrelevant. Despite the legalisation in 2000 of " no win, no fee "

lawsuits, the total cost of compensation cases in Britain has remained,

in real terms, static since 1989. The two biggest claims-marketing

companies - the great beneficiaries of compensation culture - have both

gone bust. Last year the number of accident claims fell by 9.5%. The

government's Better Regulation Task Force, which at other times has

taken the part of big business, bluntly reports that " the compensation

culture is a myth " .

 

None of this should surprise us. It is no easier to win a case under the

" no win, no fee " system than it was to win a case brought with the help

of legal aid. You still have to convince a judge that the other person

had a duty of care towards you, that they were at fault and that they

should have foreseen the risk. Because awards are made by judges, not

juries, there's very little chance of winning one of the vast

settlements people seem to secure in the US for bumping into a lamp post

or setting fire to their own hair. Under the new system, the claimant's

lawyers get stung for all the bills racked up by both sides if he loses.

They are not going to take his case to court unless it's pretty certain

to succeed.

 

Of course, there are malingerers who try to play the system, and, of

course, private companies and public services have to respond to the

frivolous suits they bring. But while the newspapers delight in telling

us about people who sue the church for acts of God, they don't report

that in the UK such cases almost always fail.

 

But compensation culture is a convenient bogeyman, because it allows big

business to associate its victims - such as the 3,500 people who die

every year in Britain as a result of exposure to asbestos - with

scroungers and conmen. It also opens a new front in their perpetual war

against regulation.

 

Last week John Sunderland, the president of the CBI, thundered that

" Britain's greatness was built on risk-taking " . Today, thanks to the

compensation culture, we suffer from a " reduction in personal

responsibility " and a " collective aversion to risk " . We need to learn

from China, whose businesses enjoy the same " fearlessness about risk " as

Britain's did during the industrial revolution.

 

What Sunderland has done is deliberately conflate two kinds of risk: the

risk to which we expose ourselves, and the risk to which we expose other

people. In the heroic age of industrial accidents, the " risk-taking

entrepreneurs " might have lost their money if their products did not

find a market, but their profits were dependent upon the risks of losing

limbs, eyes, lungs and lives they imposed on their workforce. China's

" fearlessness about risk " means that Chinese bosses are allowed to kill

their workers. Sunderland is calling for precisely the " reduction in

personal responsibility " he affects to despise. The entrepreneur shall

not be held responsible for any of the risks he dumps on other people.

 

The shadow chancellor, Oliver Letwin, gave an almost identical speech to

the Centre for Policy Studies in September. " The call to minimise risk

is a call for a cowardly society, " he said. " If we are to have a

courageous society rather than a cowardly society, we need to abandon

the rhetoric of risk minimisation. " The shadow chancellor failed to

explain why it is courageous to expose your workers to asbestos. Or why

it is courageous to lie down meekly and die when your lungs have been

trashed by your brave employer.

 

In opposing our mythical compensation culture, Sunderland and Letwin are

creating something much uglier: a risk culture. They are glorifying the

risks that the powerful impose on the weak.

 

The government, to its credit, has refused to join in. On Wednesday,

Charles Falconer, the lord chancellor, warned that " schools, hospitals,

local authorities are beginning to feel they are more at risk from

litigation than they really are ... we can't afford to leave this

impression unchecked ... As strongly as we resist spurious claims, we

should also robustly defend the rights of people to make genuine claims.

Rights and responsibilities would be meaningless if they could not

ultimately be enforced. "

 

This seems odd: the government seldom misses a chance to butter up big

business and assist the tabloids in their witch-hunts. But there are two

interest groups at play here. Falconer is a lawyer. So is the prime

minister. And his wife. And the foreign secretary, and the defence

secretary, and the transport secretary, and the chief secretary to the

Treasury. Had the Democrats taken power in the US, the world would have

been run by these people: both Kerry and Edwards are known lawyers. It's

unfortunate that our best hope of redress against one set of greedy

bastards is to enlist the help of another.

 

Of course there is another way, and that is to stop big business

exposing people to risk in the first place. But the state enforcement of

health and safety laws is in the interests of neither businessmen nor

lawyers; the money won't vote for it. Without regulation, compensation

is often the only protection we have.

 

www.monbiot.com