When Bad Luck Is Good

Versión en Español

Esther Rantzen, Britain's patron saint of victims, can now be found on-line advertising a service for the unlucky. The Homepage of the Accident Advice Helpline has a "Q&A" button containing this information:  

Q. What sort of personal injury can I claim compensation for?

 A. Any type of injury that you have sustained in the last three years can lead to a successful compensation claim -- it could be an accident at work or at leisure, as a driver, passenger, pedestrian, or a trip, slip or fall.

 The page also has a "Case Studies" button containing this encouragement:

I was walking along the street when I tripped on an uneven pavement causing me to fall forward. … [the Accident Advice Helpline's] friendly team gave me free expert advice. I received £9560.40 for my injuries, which was a huge relief.

It has a "How Much?" button featuring a pictogram detailing the various parts of the body and the amount of money one might hope to get from a successful claim for injuries to particular parts. And it has a "No-Win-No-Fee" button: this means that if the case is lost, you don't pay a penny.

The size of the potential market in Britain for this sort of litigation was spelt out in an advertising campaign by The Law Society -- the professional body for solicitors in England and Wales: "Each year millions of people have the misfortune to have accidents that are no fault of their own." The spirit in which they are prepared to assist these unfortunate millions is made clear by the advertisement's headline: "Don't get mad, get even." 

Doubtless some of these millions are deserving cases. But is there a reader of this article who has never tripped on an uneven pavement because he was not paying attention to where he was putting his feet? The key phrase in the Law Society advertisement is "no fault of their own." The Law Society advertisement asks "Had an accident?" and answers "You could get compensation." Is there a reader who would not be tempted -- however briefly before, one hopes, dismissing the unworthy thought -- by the reward on offer for shifting the blame? 

Small Numbers, Large Effect

Up until now only a tiny fraction of these millions of potential litigants has reached the courts. Those who have represent the tip of an iceberg of unknown size; most cases are settled out of court and there is no central registry of such cases. Rocketing insurance premiums suggest that their numbers are increasing rapidly. But even these growing numbers are likely to be a small fraction of the millions alluded to by the Law Society. 

Relatively small numbers, however, can have a large effect. Consider one example from the many on offer. In Harrogate in July 2000 a six year old boy was killed when an unstable five-foot-high gravestone toppled on him. It was an event that was unintended and unforeseen. A freak accident. A case of bad luck.

His parents, in an out-of-court settlement, were awarded £33,000 in compensation. This case of the unstable gravestone appears to be unique; it is the only case of successful litigation relating to a toppling-gravestone-as-a-cause-of-death that I have been able to find. But as a result authorities responsible for cemeteries throughout Britain began laying flat (i.e. pushing over) thousands of "dangerous" gravestones for fear of being sued.  

Fault Trees, Event Trees

Engineers in charge of large projects try to manage risk with devices called "fault trees" and "event trees." The branches of a fault tree are made up of bifurcating chains of probabilities that could have caused an accident, and the branches of an event tree consist of similar chains of probabilities that might lead to a future accident. The engineer's event tree routinely fails because it is simplistic. It does not have enough branches and the probabilities assigned to the branching points are usually badly informed guesses. 

It can however serve as a metaphor for the way we all manage risk. We peer into the future through the dense foliage of the real world event tree and, so far as we can see the probabilities at the ends of the branches representing undesired outcomes look sufficiently small to make the journey to the end of the branch seem a risk worth taking. 

Occasionally however we have a nasty surprise. In a stochastic world, however small the probability, it is always possible for our number to come up. Bad luck.  

But no! Hindsight transforms our event tree into a lawyer's fault tree. Armed with his forensic machete he hacks away all the other branches and presents the court or the insurance company with a one branch fault tree that he calls culpable negligence. 

This is not a defence of genuine culpable negligence; such a thing does exist. It is a plea for a sense of proportion. A society that must find someone to blame for every misfortune will be timid, boring and paranoid. It will suppress the very risk-taking activities in science, engineering, medicine, education, sport and enterprise that have made our present society the healthiest and wealthiest in history.