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NO-FAULT COMPENSATION ON THE ROADS IN TWENTIETH CENTURY BRITAIN

Published online by Cambridge University Press:  11 June 2010

Peter Bartrip
Peter Bartrip
Affiliation:
Centre of Socio-Legal Studies, University of Oxford.
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The Cambridge Law Journal , Volume 69 , Issue 2 , July 2010 , pp. 263 - 286
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Copyright © Cambridge Law Journal and Contributors 2010

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References

1 The word “accident” is loaded and controversial in that it implies unpredictability and an absence of causation. I have avoided its use except when quoting other materials or where the use of an alternative word would create ambiguity. The word “victim” also is controversial but is employed here in the absence of a succinct alternative.

2 On the earlier period see my “Pedestrians, Motorists, and No-Fault Compensation for Road Accidents in 1930s Britain” (2010) 31 Journal of Legal History 1–16.

3 I. Roberts, “Reducing Road Traffic” (1998) 316 British Medical Journal 242–3. On the history of motoring and road safety in Britain see W. Plowden, The Motor Car and Politics in Britain (Harmondsworth 1973); H.L. Ross, “Law, Science and Accidents. The British Road Safety Act of 1967” (1973) 2 Journal of Legal Studies 1–78; J. Foreman-Peck, “Death on the Roads: Changing National Responses to Motor Accidents” in T. Barker (ed.), The Economic and Social Effects of the Spread of Motor Vehicles. An International Centenary Tribute (Basingstoke 1987), pp. 264–89; B. Luckin, “War on the Roads: Traffic Accidents and Social Tension in Britain, 1939–45” in R. Cooter and B. Luckin (eds.), Accidents in History. Injuries, Fatalities and Social Relations, (Amsterdam and Atlanta 1997), pp. 234–254; S. O'Connell, The Car in British Society. Class, Gender and Motoring, 1896–1939 (Manchester and New York 1998); P. Thorold, The Motoring Age. The Automobile and Britain (London 2003); J. Moran, “Crossing the Road in Britain, 1931–1976” (2006) 49 Historical Journal 477–496; M. Pugh, We Danced all Night. A Social History of Britain between the Wars (London 2008), chapter 12; B. Luckin and D. Sheen, “Defining Early Modern Automobility. The Road Traffic Accident Crisis in Manchester, 1939–45” (2009) 6 Cultural and Social History 211–30. The extensive American literature includes B. Ladd, Autophobia. Love and Hate in the Automotive Age (Chicago and London 2008) and P.D. Norton, Fighting Traffic. The Dawn of the Motor Age in the American City (Cambridge Mass. 2008).

4 Road Accidents Great Britain 1991 (London 1992), p. 80.

5 The Times, 17 July 1934, 15.

6 The Times, 5 May 1932, 15.

7 The Times, 17 February 1965, 5.

8 HC Deb. vol. 724 cols. 655–6 (10 February 1966).

9 Road Accidents. Great Britain 1976 (London 1977), p. 50.

10 Road Accidents Great Britain 1991, p. 80; The Times, 27 June 2008, 2, 26–7.

11 J.R. Spencer, “Rylands v. Fletcher: a Chapter of Accidents in the History of Law and Motoring” [1983] C.L.J. 65.

12 Spencer, “Rylands v. Fletcher”, at pp. 66–73, 79; R. Bagshaw, “The Development of Traffic Liability in England and Wales” in W. Ernst (ed.), The Development of Traffic Liability (Cambridge 2010), pp. 12–49. See J Charlesworth, Liability for Dangerous Things (London 1922).

13 House of Lords Bills, 3 (1931–32).

14 Motor, 9 February 1932, 65; 14 June 1932, 811; 21 June 1932, 854; Autocar, 13 May 1932, 787; Hampshire Record Office, (hereafter HRO), Automobile Association Archives (hereafter AAA), 73M94/A15 Minutes of Motor Legislation Committee, 6 June 1932.

15 HL Deb. vol. 84 cols. 551–584 (2 June 1932). See also The National Archives, London (hereafter TNA) MT34/12 Lord Plymouth's Memorandum (31 May 1932); Living Streets, London, Pedestrians' Association (hereafter PA), Fourth Annual Report (1932); Minutes of Fourth Meeting of Committee (12 July 1932).

16 Motor, 26 June 1934, 923; HRO, AAA, 73M94/A15, Minutes of Motor Legislation Committee, 16 July 1934.

17 HL Deb. vol. 92 cols. 942–945 (7 June 1934); vol. 93 cols. 144–165 (26 June 1934).

18 PA, Committee Minutes, 12 June, 10 July 1934; Annual Report (1934); HL Deb. vol. 92 col. 944 (7 June 1934); The Times, 1 July 1935, 22; A.K. Butterworth, “Compensation for Road Accidents” (1936) 120 Nineteenth Century and After 365–376.

19 M. Stenton and S. Lees, Who's Who of British Members of Parliament, (Hassocks 1979), vol. 3, p. 58; HC Deb. vol. 319 col. 1093 W (28 January 1937).

20 PA, “Compensation for Road Accidents. Memorandum from the Pedestrians' Association” (1942).

21 Report of the Committee on Compulsory Insurance [Cmd.5528, 1936–7] 49–57; The Times, 20 June 1946, 7; 2 July 1946, 4. See Royal Commission on Civil Liability and Compensation for Personal Injury (hereafter Pearson Commission) (Cmnd. 7054-I, 1977–8) I, 208; Bagshaw, “The Development of Traffic Liability”, p. 44.

22 W. Beveridge, Report of the Inter-Departmental Committee on Social Insurance and Allied Services (Cmd. 6404, 1942–3) 219–20.

23 W.T. Monckton, Final Report of the Departmental Committee on Alternative Remedies, (Cmd. 6860, 1945–6).

24 D.W. Elliot and H. Street, Road Accidents (London 1968) p. 286.

25 Over the last twenty years or so social theorists such as Ulrich Beck and Anthony Giddens have developed the idea of contemporary western culture as a risk society in which people “inhabit a high technological frontier which absolutely no one completely understands and which generates a diversity of possible futures”. Society is preoccupied with “debating, preventing and managing risks that it itself has produced”. See for example A. Giddens, ‘Risk and Responsibility’ (1999) 62 M.L.R. 1–10; U. Beck, ‘Living in the World Risk Society’ (2006) 35 Economy and Society 329–45.

26 Road Accidents Great Britain 1991, p. 80.

27 D. Payne, “Compensating the Accident Victim” (1960) 13 Current Legal Problems 85–111; H.R. Grey, “Liability for Highway Accidents” (1964) 17 Current Legal Problems 127–43.

28 Rt. Hon. Lord Parker of Waddington, “Compensation for Accidents on the Road” (1965) 18 Current Legal Problems 1–12.

29 On Saskatchewan's scheme see Report on the Study of Compensation for Victims of Automobile Accidents (Regina 1947); J. Green, “Automobile Accident Insurance in the Province of Saskatchewan” 3rd ser. (1949) 31 Journal of Comparative Legislation and International Law 39–53.

30 Parker, “Compensation for Accidents” 1–12; The Times, 17 Feb. 1965, 5.

31 HC Deb. 708 cols. 144–5 W (11 March 1965); 709 cols 1393–4 (30 March 1965).

32 R. Keeton and J. O'Connell, “Basic Protection – a Proposal for Improving Automobile Claims Systems” (1964) 78 Harvard Law Review 329–384. See the same authors' Basic Protection for the Traffic Victim (Boston 1965) 11–12 and “Basic Protection. A New Plan of Automobile Insurance” (1965) 32 Journal of Risk and Insurance 539–548. In 1966 Britain's Minister of Transport, Barbara Castle, predicted the “appalling prospect” of 1million dead and injured a year by 1980. HC Deb. vol. 724 cols 655–6 (10 February 1966).

33 A.L. Goodhart, “Our Horse and Buggy Law. Delay in Litigation and Automobile Accidents” (1965–6) 49 Journal of the American Judicature Society 26–30.

34 T. Ison, The Forensic Lottery. A Critique on Tort Liability as a System of Personal Injury Compensation (London 1967) 28 and chapter iv.

35 D.S. Greer, “No-fault Compensation for Personal Injuries arising from Road Accidents: Developments in the United States” (1992) 21 Anglo-American Law Review 221–77.

36 Elliott and Street, Road Accidents, p. 249.

37 Ibid.

38 Ibid., chapter 9 and 285.

39 (1968) 17 International Comparative Law Quarterly 1063–4; Modern Law Review (1969) 32 580–4; (1969) 27 Cambridge Law Journal 127–31. See also J.A. Jolowicz, “Liability for Accidents” (1968) 26 Cambridge Law Journal 50–63.

40 P.S. Atiyah, Accidents, Compensation and the Law (London 1970), 603–615.

41 In the early 1970s, when Massachusetts introduced no-fault compensation for personal injuries sustained in road accidents, insurance premiums fell. The Times, 19 November 1973, 16; 2 March 1974, 20.

42 A Trilogy of SOCL Committee Reports: Your Rights, Your Courts, Your Injuries. Part III, Compensation for the Injured (London 1970), 73–112; P.S. Atiyah, “Compensation for the Injured” (1971) 34 M.L.R. 432–436; The Times, 16 June 1970, 4; 22 November 1974, 17.

43 HC Deb. vol. 848 col. 1119 (19 December 1972).

44 Report of the Committee on Safety and Health at Work (London 1972), 629.

45 HC Deb. vol. 848 cols. 1119–25 (19 December 1972). Thalidomide, a drug prescribed between 1958 and 1961 to relieve various conditions, including severe vomiting during pregnancy, could cause severe foetal damage. Litigation against the British manufacturers, Distillers, commenced in 1962 but financial settlements for all victims had not been agreed when the Royal Commission on Civil Liability and Compensation for Personal Injury was appointed. See H. Teff and C. Munro, Thalidomide. The Legal Aftermath (Farnborough 1976).

46 Greer, “No-Fault Compensation” 222.

47 G. Palmer, Compensation for Incapacity: a Study of Law and Social Change in New Zealand and Australia (Oxford 1979).

48 The Times, 19 Nov.1973, 16; 28 Nov. 1973, 24; 29 Nov. 1973, 22; 2 March 1974, 20; 16 March 1974, 15; 22 November 1974, 17; 28 Nov. 1974, 17; 7 Dec. 1974, 17; 18 December 1974, 15.

49 No-Fault on the Roads. A Report by Justice (London 1974), 54; The Times, 4 April 1974, 2.

50 The Commission took oral evidence on road injury from 40 individuals and institutions. It also received 268 written submissions on the issue. Pearson Commission, I, 5, 209.

51 I. Dale (ed.), Conservative General Election Manifestos, 1900–1997 (London 2000), 258. The Party's manifesto for the General Election of February 1974 had ignored the issue. No Labour Party manifesto has ever addressed the subject.

52 The Times, 31 July 1975, 13. The House of Lords dismissed an appeal from Clifford Snelling who, at the age of seven, had been hit by a car while cycling. Snelling had suffered injuries, including brain damage, to the extent that “his life had been ruined”, but since no blame could be attached to the motorist his negligence action failed, leaving him uncompensated.

53 The Times, 4 May 1971, 2.

54 Ibid., 3 Oct. 1981, 18.

55 TNA, LCO 20/341, Royal Commission on Civil Liability, Liaison with the Lord Chancellor's Department on Mr Graham Page's Bill; HC Deb. vol. 907 cols. 882–98 (12 March 1976).

56 Pearson Commission, I, chapter 18.

57 Guardian, 17 March 1978, 14.

58 The Times, 17 March 1978, 19.

59 Ibid., 18 March 1978, 19.

60 TNA, BN 113/31, K. Mansfield to D.C. Ward, 28 July 1978; Peter Jacques to D.C. Ward, 23 June 1978; BN 113/37, Report of TUC Conference on the Pearson Report, 15 November 1978.

61 TNA, BN 113/36, Report from the Working Group on No-Fault Liability on the Pearson Commission Report, July 1978, 11.

62 TNA, BN 113/33, Note of a Meeting between DHSS Officials and the Disability Alliance, 18 July 1978.

63 D.R. Harris, “An Appraisal of the Pearson Strategy” in D.K. Allen et al (eds.), Accident Compensation after Pearson, (London 1979) 119–134. See also A.L. Ogus, P. Corfield and D.R. Harris, “Pearson: Principled Reform or Political Compromise?” (1978) 7 Industrial Law Journal 143–159.

64 R.A. Hasson, “The Pearson Report – Something for Everyone” (1979) 6 British Journal of Law and Society 119–26.

65 P.S. Atiyah, “What Now?” in Allen et al, Accident Compensation, p. 230. See also P.S. Atiyah, “No-Fault Compensation: a Question that will not Go Away” (1980) 694 Insurance Law Journal 625–40; Atiyah, Accidents, Compensation and the Law (1980 edn.) pp. 623–627.

66 R. Lewis, “No-Fault Compensation for Victims of Road Accidents: Can it be Justified?” (1981) 10 Journal of Social Policy 161–78.

67 J.G. Fleming, “The Pearson Report: its ‘Strategy’” 42 (1979) M.L.R. 249–69.

68 F.A. Trindade, “A No-Fault Scheme for Road Accident Victims in the United Kingdom” 96 (1980) L.Q.R. 581–626.

69 HC Deb vol. 946 cols. 636–45 (16 March 1978); vol. 958 col. 775 (17 November 1978).

70 The Times, 24 July 1978, 4.

71 TNA, BN113/23/1, BW Taylor to DC Ward 23 March 1978; Report of Meeting of Labour Party Working Group on No-Fault Liability 18 April 1978; DHSS Views of Pearson Recommendations on Road Injuries 24 April 1978; BN113/23/2, Report of the Transport Group 9 June 1978.

72 TNA, PREM 16/78, M. Foot to Prime Minister 29 June 1978; W. Rodgers to M. Rees, 24 October 1978.

73 HC Deb vol. 958 cols. 771–875 (17 November 1978).

74 I. Dale (ed.), Labour Party General Election Manifestos (London 2000), pp. 215–37; Dale, Conservative General Election, pp. 263–82.

75 H.D. Orriss, “The Road Injuries No-Fault Compensation Scheme” 144 (1980) Justice of the Peace 24–5.

76 HL Deb. vol. 426 cols 615–25 and 629–62 (20 Jan. 1982).

77 Civil Justice Review. Lord Chancellor's Department. Report of the Review Body on Civil Justice (Cm. 394, 1987–8) p. 1.

78 Ibid., p. 85.

79 Compensation for Road Accidents. A Consultation Paper (London 1991) pp. 2, 18, 24; HC Deb. vol. 306 col 380 (11 February 1998); vol. 326 col 1082 (3 March 1999); http://www.parliament.uk HC Deb. cols. 237–9 (19 November 2008).

80 HC Deb. 306 col. 380 (11 February 1998); vol. 326 cols. 1082–3 (3 March 1999).

81 http://www.parliament.uk HC Deb. cols. 237–9 (19 November 2008).

82 D. Miers, State Compensation for Criminal Injuries (London 1997), pp. 1–13; Atiyah, Accidents, Compensation and the Law, (1970 edn.), pp. 319–26, 614.

83 P.W.J. Bartrip, Workmen's Compensation in Twentieth Century Britain (Aldershot 1987), p. 183.

84 Plowden, The Motor Car, chapter 18.

85 Atiyah, “No-Fault Compensation”, p. 627; Atiyah, Accidents, Compensation and the Law (1987 edn.), p. 572.

86 Atiyah, Accidents, Compensation and the Law (1987 edn.), 569, 576–7.

87 P.S. Atiyah, “Personal Injuries in the Twenty First Century: Thinking the Unthinkable” in P. Birks (ed.), Wrongs and Remedies in the Twenty-First Century (Oxford 1996), pp. 1–46; P.S. Atiyah, The Damages Lottery (Oxford 1997), chapter 8.

88 A.S. Burrows, Understanding the Law of Obligations. Essays on Contract, Tort and Restitution (Oxford 1998), chapter 6.