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Zealand has committed itself to a comprehensive state
insurance scheme which will eventually bring personal
injury litigation to a halt. This entails the implementing
of twin compensation schemes offering, regardless of
fault, twenty-four hour accident cover for employers,
employees and the self-employed, and all those injured
in motor accidents. Compensation will be available
under both schemes on an absolute liability basis,
replacing
common law
rights. Those persons ex-
cluded from the compensation provisions, mainly non-
wage earners, injured in other than road accidents, will
retain the right to take a common law action.
In order to administer and finance this scheme a non-
statutory authority will be set up, having prime respon-
sibility for the administration of the scheme and having
control over an insurance fund. The flow of money at
present going into the tort system 'employers' liability,
insurance and road traffic premiums) will be replaced
by a general contribution scheme, financed by employers,
vehicle owners and drivers and the State. This statutory
authority will employ the insurance companies as its
agents, provided they can handle the administration of
premiums at acceptable charges. The cost of the system
will probably be the same as that of the occupational
injuries—about 15 to 20 per cent of the annual fund.
The compensation will be paid in the form of earnings
and related benefits payable weekly followed by disability
payments calculated on a simple tariff. A totally dis-
abled person will receive 80 per cent of his average pre-
accident earnings reaching a maximum of about £70
per week for the duration of the disability. In the case of
permanent disability payments of up to £5,000 would
be made for loss of enjoyment of life.
We already have a system of compensation for those
injured in the course of employment. To extend it to
those injured by motor vehicles would not be too great
a step. Once that position has been reached, it would
not be unforeseeable to envisage extending compen-
sation to those injured in any accident and by any
disease regardless of any activity which brought it about.
Proposed Reforms
The first step is to impose strict liability on the owners
of motor vehicles for injury caused by their use. This
will place the burden of disproving negligence on the
defendant in an action for personal injuries.
The next step is to implement a state insurance
scheme, on lines similar to that in New Zealand, which
pays compensation to those injured in motor accidents
or in the course of employment. The proposed scheme
would compensate a victim up to a certain amount in
weekly benefits, say two-thirds of his average weekly
earnings, for total incapacity. This would be calculated
on the victims average earnings over the past three
years, with a maximum limit of £40 per week. Should
the victim be incapable of resuming work at all, then he
would be paid a disability pension to compensate for
his lost earnings. Similar compensation would, of course,
be paid to the dependants of victims of fatal accidents.
One central statutory authority of civil servants would
administer the scheme, from the levying and collecting
of premiums to the payment of compensation. Disputes
over the amount of compensation payable and the
nature of the accident could be resolved within the
system with an appeal to the High Court on a point of
law.
This would of course entail depriving the insurance
companies of motor vehicle and employers' liability
insurance and would remove a large bulk of personal
injury litigation from the courts. Gerard Clarke dwelt
on the possibility that the right to litigate over the pay-
ment of compensation, and the right of the courts to
decide such justiciable controversies is protected by our
Constitution and is hence inviolable. But one could say
that there is no right to haggle over compensation for
accident victims by insurance companies. There is,
moreover, the right to be paid compensation regardless
of fault at a low cost to society. Whereas commercial
insurance devours almost 50 per cent of the annual
funds in costs, state insurance would use less than half
that amount.
The Winn Committee proposal that damages should
be paid quickly could be made into a rule that minimum
compensation' must be paid within two weeks «4 the
claim being registered.
With compensation being determined according to a
tariff and to certain pre-existing facts (previous earnings)
there will be no pressure from the administrators of the
scheme on claimants to accept lesser sums.
The scheme would end litigation between companies
to determine which company is to pay the expenses of
a particular accident. Such actions have become a bur-
den on the taxpayer who has to support the courts and
pay the corresponding insurance premiums.
The doctrine of contributory negligence, whereby a
victim's damages are reduced according to the degree of
negligence which a court attributes to the victim must
be abolished. Not only is it difficult to determine such
negligence accurately but the principle detracts from
the prime purpose of insurance which is to compensate.
It is unlikely, as experience with occupational injuries
has shown, that persons will cause themselves deliberate
injury to collect compensation. The only matters to be
determined where an injured person seeks compensation
will be, first, did the injury result from an accident
involving the use of a motor vehicle and second, how
much compensation has to be paid.
The
Hon. Mr.
Justice Walsh said that the concept of
compensation in our jurisdiction without fault was first
introduced in the Workmen's Compensation Code as far
back as 1897. So far as motor accident cases are con-
cerned the present day situation is one in which the
average citizen stands a greater chance of being involved
in a road accident at some time during the course of his
life than in contracting many, if not most, of the com-
mon diseases. Courts do not really exist to deal with
matters of daily occurrence but rather to deal with the
extraordinary events in life. The question under consid-
eration has been considered in various countries in
recent years but on the Continent the concept first
appeared in relation to railway accidents in the laws of
Prussia in the first half of the nineteenth century. What
is known in the United States as the Keeton-O'Connell
plan is really one which might be called a split level
systerq. It abolishes the fault principle in respect of the
less serious injuries but retains it for the more serious
ones. In the class of injuries in respect of which fault
need not be established the plan does not offer anvthing
for pain and suffering save to the extent that such
damages would be in excess of five thousand dollars
and then only in respect of the excess. The plan put
forward by Professor André Tunc of Paris is somewhat
similar in that there is nothing for pain and suffering
or mental distress. So much of the damages as relate to
loss of earnings are subject to a ceiling which is deter-
mined by reference to the guaranteed national minimum
wage. Both of these schemes suffer from the serious
defect of providing nothing for pain and suffering which
is a very important part of our concept of damages.
The Irish delegation at the Council of Europe first
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