Some claimaint solicitors think child injury cases cannot be lost. But society at large is losing and action is needed, writes Henry Bermingham


The cost of claims against schools has hit the headlines again, with recent reports stating that £2 million was paid out to pupils in compensation last year.



For those specialising in defending public authority claims, this was no surprise. Indeed, one wonders how loud the howls of outrage would have been, had the total claims cost (including the claimants' costs) been reported.



Gone are the days when minor accidents were just a part of growing up. In the 'have a go' culture, created by conditional fee agreements and the industrialisation of personal injury claims by claims management companies, a child claim is a potential bonanza - simply because the claims themselves are tricky to defend. In fact, some on the claimant side believe child cases cannot be lost.



Factors such as sympathy towards the plight of an injured child, expectation of very high (arguably unrealistic) standards from those who assume responsibility for children, and the view that children have almost no care for their own safety, reinforce this view.



No wonder then that the number of speculative, spurious child claims is increasing.



No one is suggesting that genuine claims should not succeed, nor that schools should be complacent about pupil safety. However, the current situation has serious consequences.



Teachers live in fear of litigation, from repercussions of reprimanding a child to their liability in relation to school trips. Indeed to avoid being sued, some schools are adopting ludicrous risk-averse practices. Schools have cut down all trees in their grounds and one school made its pupils wear safety goggles to play conkers. Perhaps most concerning is the threat to abandon the traditional school trip.



Defeating the problem of spurious pupil claims requires the involvement of the key stakeholders.



Starting with the government, tentative steps in the right direction have been taken. The Compensation Act 2006 allows the court to look at whether the imposition of a particular duty will discourage volunteers from assisting with a 'desirable activity' - a provision that almost seems designed to deal with school trips. Also, the current process review should eliminate the worst abuses by removing claims management companies from the smaller claims - removing referral fees and controlling the huge excess profits made on these claims at present.



Turning to the judiciary, there is a need to look at the consequences of finding against a defendant. The Compensation Act allows this and should be used. There is also the question of what schools can realistically achieve. It is not possible to eliminate all risk from life, and children are more aware of danger than they are given credit for.



This leaves the lawyers. On the claimant side, some discipline is needed. Reject poor cases. Do not waste the precious time and resources of schools by pursuing silly cases in the hope of getting a pre-action disclosure application out of the file.



On the defendant side, be robust - if the case is poor, defend it. Indeed, it was encouraging to read in The Times recently that schools and local authorities are now looking to defend as many of the spurious claims as possible.



The issue of school claims is a small part of a wider debate. The risk of litigation has caused society to change. This is both good and bad. On the plus side, health and safety standards are much improved. On the minus side, there is a compensation culture and we see health and safety taken to ridiculous extremes. In addition, the money spent on claims is diverted from service delivery.



This leads neatly into the claims process review. If excess profits are controlled, the cost to schools will drop and fear of litigation will be reduced. Further, we may see fewer spurious claims.



Henry Bermingham is a partner at Berrymans Lace Mawer and vice-president of the Forum of Insurance Lawyers