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A report by Justice on the trial of motor accident
cases describes what happens after many fatal accidents:
the dependant and his advisers may have no knowledge
of the cause of the accident; they can only rely on the
accounts of witnesses who came on the scene after the
accident. There is no duty on the insurer to provide
evidence and they may do no more than make an ex-
gratia payment hoping to avoid an inquiry. If the
dependant proceeds he is in the dark, with the costs
falling on himself should he fail to establish liability.
Supposing the claimant does go to court, he then has
to show that the defendant's negligence caused the
impact or caused the plaintiff to act so as to injure
himself and furthermore that the injury was the result
of the impact or in the case of nervous shock that the
defendant's negligence was responsible. Finally the
expenses which he has incurred since as a result of the
injury must also be reasonable in the circumstances.
Should the plaintiff be successful in each of these three
stages he has no means of determining the amount of
compensation he will receive, and this depends more on
the experience of his legal advisers than on anything
else. If the court finds that the plaintiff has also been
negligent his damages will be reduced regardless of his
needs. The average claim after a road accident is £300,
but it should be noted that the small sums are invariably
settled while the larger claims representing great hard-
ship reach the court.
Efficient System of Compensation
What is called for is an efficient, speedy and fair
system of compensation regardless of fault, which pays
claims according to a set tariff depending on the
plaintiffs loss.
The moral argument for setting up such a system is
forceful. If a hazardous activity involving a high degree
of risk is to be undertaken then the class of persons who
are exposing themselves and others to a risk of injury
should compensate those injured as a result of that
activity. The responsibility for motor accidents lies not
with the individuals directly causing them but with the
members of that class who promote that dangerous
activity.
This argument could perhaps be applied to support
the present occupational injuries scheme.
The scheme provides a model prototype for any
system of compensation without fault. It was conceived
in 1897 to remedy the situation where it was virtually
impossible for a working man to succeed in a common
law action for negligence against his employer due to
the defences (voluntary assumption of risk and com-
mon employment) available to the employer. The 1897
Act made employers liable for injury,to their workmen
which arose out of and in the course of employment and
consequently most employers insured against this
liability. The liability was not absolutely strict and
employers could plead in their defence that the injury
was due to serious and wilful misconduct on the part of
the employee or that the course of activity causing his
injury was outside the scope of his employment. Only
where the injury was exceptionally severe were these
defences restricted, but the adversary nature of the
system was emphasised by the frequent use and success
of these defences.
Until 1946 in England and 1966 in Ireland when
workmen's compensation was brought into the national
insurance schemes of both countries, the system remained
under private control—it was administered by the insur-
ance companies and the employers with recourse to the
courts when necessary.
Occupational Injuries Scheme
The new English system was intended to supplement
the common law remedy and, although it did not abolish
it, it was expected that, in view of the compensatory
nature of the system, few people would feel the need
to bring a common law action. However, practice has
proved otherwise, and employers' liability actions have
greatly increased in popularity. In 1966 when our own
occupational injuries scheme was introduced, the com-
mon law action was retained, perhaps as an excuse for
the lower rate of disability and sickness pensions. It has
meant, however, that money is spent on employers'
liability insurance which discriminates between fault-
injuries and non-fault injuries, while that same amount
of money could be diverted into national insurance
to
increase
the occupational injuries benefits. Our own
scheme has one major defect—it only compensates those
who are in insurable employment, which means now
earning less than £1,600 per annum.
The range of persons covered by the scheme
could be increased without any alteration in its struc-
ture. As it stands at present the scheme pays out a
sliding weekly benefit to an incapacitated person for
twenty-six weeks after the disabling accident.
The scheme provides a process of decision by civil
servants with appeals to tribunals and an occupational
injuries commission with final appeals to the High and
Supreme Courts on a point of law, and the method of
resolving these disputes is normally quick, fair and not
unduly complicated.
The scheme is inexpensive to administer, only 10 to
15 per cent of the total in-payments being spent on
administration. The cost of administering the tort system
compares dismally with this figure. Insurance companies
spend 49 per cent of the premium total on adminis-
tration, profit and legal costs, and on to this one must
add the cost of the courts for the time during which
these companies spend in litigation. The scheme has
successfully compensated those injured in a particular
class activity, namely "employment", and could be
adapted to meet the needs of another class: those
injured in motor accidents.
In England the Criminal Injuries Compensation
Board awards compensation to persons who have sus-
tained "personal injury directly attributable to a crime
of violence (including arson and poisoning) or to an
arrest or attempted arrest of an offender."
It is hard to understand why this particular class of
person were singled out for compensation; perhaps
because most of such wrongdoers are insolvent and
unable to pay tort damages, and the State may feel in
some way responsible for the injury caused. But it can
be said that such injuries are caused accidentally and
differ only from a normal accident in the manner and
circumstances in which they occur.
Let us now consider the position abroad.
The Position in France and New Zealand
In France the courts have used much ingenuity in
developing a system of absolute liability. In a series of
cases between 1897 and 1934 the Cour de Cassation
brought into the fore Article 1384 of the Code Civil
imposing strict liability for damage caused by things
under another person's care. The doctrine was extended
to make employers strictly liable to their workmen and
to impose strict liability on motorists for damage caused,
leaving open only one defence : that of proving that the
cause of accident was an unforeseen event, or caused
by the victim's gross negligence.
After careful consideration of a Royal Commission
report by a Parliamentary Select Committee, New
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