The Gazette 1971

motor car to extend strict liability to the custodians of dangerous things. The rule in Rylands v Fletcher im- posed strict liability for injury caused by the escape of things or substances from land being put to a non- natural use. A motor car is a dangerous thing; the activity of driving is one which involves a high risk of injury to the public at large, and it is certainly a non- natural use of the land. A few years later the owner of a tractor was held liable for injury resulting from the escape of sparks from his machine. Strict Liability Strict liability is no stranger to our legal system. The law often allows a victim to claim damages for injury resulting from an injurious breach of statutory regula- tions. Under the common law keepers of wild animals are strictly liable for injury caused by the beasts under their care. Attempts have been made to impose strict liability on a driver who, while committing a breach of the Road Traffic Acts, has injured another, but it did not succeed in Phillipps v Britannia Hygienic Laundry Co. (1923), where the defendants' lorry had been driven on the road with a defective axle, thereby committing a breach of the regulations, resulting in an accident causing damage to the plaintiff. In 1934 Lord Danesfort tried unsuccessfully to intro- duce a bill imposing strict liability on the owners of motor vehicles. The bill was well received and the Select Committee which examined it thought that the motor car did fall within the rule in Rylands v Fletcher and that the responsibility for injury lay with the motor- ing community rather than the individual insurer. The bill was shelved after the completion of the second reading, partly due no doubt to pressure from insurance companies and litigating lawyers whose interests were infringed. Claims against Insurance Companies Let us now consider what confronts a motor accident victim who makes a claim against an insurance company. A seriously injured victim, having lost the regular income from his job, is desperately short of money. He must settle his claim quickly. On the other hand the insurance company, even if liability is admitted, are determined to pay a lesser sum and often appear to be willing to go to court on both the amount of compen- sation and on the issue of legal liability. The bringing of proceedings against a reticent insurance company is an accepted threat to pay up. Whether the correct compensation is paid or not depends on who can hold out the longest: the process is not unlike a game of poker—only a court action will prove who holds the stronger hand and the decision in a negligence action cannot always be foretold. The stakes-are high, for the loser pays the costs of the action and, even if a plaintiff wins on the issue of legal liability the court may award lesser damages than were orig- inally offered by the insurer, which will also land the plaintiff with the costs. The task of having to prove fault discourages many plaintiffs from pursuing their claims. A recent survey in the United States estimates that 45 per cent of motor accident victims receive no tort compensation and that 68 per cent of serious accident victims go without com- pensation due to the absence of fault or to the difficulty of proving it in court. Plaintiffs often have to tolerate long delays to the profit of the insurance companies. Both European and North American statistics agree that the average time for a serious claim to be settled is two and a half years.

in risk-taking activities, such as motor car driving, at a reasonable cost to society if the funds at present poured into commercial insurance are used to their full potential. The strict liability which law first imposed was, how- ever, far too costly for the society in which it functioned. Every subject injured had a right to compensation pro- vided the cause of the injury could be determined. Finding the liability too wide and influenced by the theories of causation of the canon law, the common law judges sought to curtail this unrestricted liability. They found a solution in limiting liability to injury caused intentionally or negligently while preserving the rule of strict liability for the activities of those of a common calling, such as innkeepers and carriers. The potential of the law of negligence was not real- ised until the advent of the industrial revolution—with the arrival of railways, heavy machinery and eventually the motor car. It was during this period that the neces- sity for compensation for loss arising through sickness, disabling and fatal accidents became apparent. The growth of the railways meant that a substantial number of members of the middle class were injured, often fatally, in railway accidents. The first of a series of Fatal Accident Acts was intro- duced in 1846 abolishing the common law rule that dependants of the fatally injured could not sue the wrongdoers, and giving dependants a statutory limited right of action where the breadwinner's death was the result of a tortious act. As Mr. Ison explained, "The axiom 'no liability without fault' was quickly raised to a dogmatic postulate of justice because it was best calculated to serve the interest of an expanding industry and a rising middle class." An ideal opportunity arose with the arrival of the TheLonger-Term Savings Plan. Abreakthrough in LifeAssurance.

Friends' Provident & CenturyLife Office

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