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No-Fault Compensation for Victims of Road Accidents: Can it be Justified?

Published online by Cambridge University Press:  20 January 2009

Richard Lewis
Richard Lewis
Affiliation:
Lecturer in Law, University College, Cardiff.
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Abstract

This article considers the reasons given for the creation of a no-fault compensation scheme for victims of road accidents. In particular the article examines the work of the Royal Commission on Civil Liability and Compensation for Personal Injury and evaluates its proposals by reference to its analysis of whether preferential treatment for road accidents can be justified. The policy options for the future development of welfare provision for the disabled are thereby thrown into sharp relief: each justification given is of relevance to other accident victims; the political nature of the reform is exposed when considering why one particular group is to be preferred to another; and the rationale supporting the existence of the many regimes of compensation in tort and social security is called into question. The role of Commissions in policy making and the structural limitations upon their deliberations are also discussed. In sum the article provides a case study of what has been called ‘the strain of seeking to justify the different treatment for various categories of misfortune’.2

Type
Article
Information
Journal of Social Policy , Volume 10 , Issue 2 , April 1981 , pp. 161 - 178
Copyright
Copyright © Cambridge University Press 1981

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References

1 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury (Pearson Report), Vol. I, Report; Vol. II, Statistics and Costings; Vol. III, Overseas Systems of Compensation, Cmnd. 7054–I, 7054–II, 7054–III, HMSO, London, 1978.Google Scholar In this article all references are to Vol. I unless otherwise stated.

2 Ison, T. G., The Forensic Lottery, Staples Press, London, 1967, p. 35.Google Scholar

3 See Trindale, F. A., ‘A No-Fault Scheme for Road Accident Victims in the United Kingdom’ Law Quarterly Review 96 (1980), 581.Google Scholar

4 See the Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, Vol. III. Chapter 3 deals with the U.S.A. and Annex 2 gives a summary of the provisions of the no-fault laws in those States which have adopted them. For an earlier review see Tunc, A., ‘Traffic Accident Compensation: Law and Proposals’, International Encyclopaedia of Comparative Law, Vol. 9, Ch. 14, Oceana Publications Inc., New York, 1970.Google Scholar The most recent European book to review traffic accident compensation is Simeons, D., Vergoerding Voor Verkeusslachteroffers, Antwerp, 1979.Google Scholar

5 See, for example, Ison, T. G. bemoaning the failure of the British Columbia Royal Commission on Automobile Insurance to even raise this ‘fundamental question, going to the root of the inquiry’ in ‘Highway Accidents and the Demise of Tort Liability’, Canadian Bar Review, 47 (1969), 304, 309.Google Scholar

6 Harris, D. M., ‘An appraisal of the Pearson strategy’ in Allen, D. K., Bourn, C. J., Holyoak, J. H. (eds), Accident Compensation After Pearson, Sweet & Maxwell, London, 1979, pp. 86–8.Google Scholar For those disabled irrespective of cause it has been estimated that there are 54 different forms of financial assistance – see The Consumers Association, Managing at Home – A Which? Campaign Report, London, 1978.Google Scholar Lord Plowden therefore refers to ‘the Kafka-like world in which the disabled and handicapped have to exist’, in Simkins, J. and Tickner, V., Whose Benefit? An Examination of The Existing System of Cash Benefits and Related Provision for Intrinsically Handicapped Adults and Their Families, Economist Intelligence Unit Report, London, 1978, p. 11.Google Scholar

7 See, for example, George, V., Social Security: Beveridge and After, Routledge and Kegan Paul, London, 1968, p. 186Google Scholar; The Disablement Income Group, Creating a National Disability Income, Occasional Paper No. 12, London, 1972Google Scholar; The Disability Alliance, Poverty and Disability: the Case for a Comprehensive income Scheme for all Disabled People, London, 1975Google Scholar; one of the ‘three schools of thought’ within the Pearson Commission believed that a single disability allowance was a ‘socially desirable objective’ but was prevented by its terms of reference from considering any details. See the Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, paras. 264 and 1713.

8 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 995.

9 Ibid, paras. 996–8.

10 See The Times and the Guardian, 17 March 1978.Google Scholar

11 P. S. Atiyah, ‘What Now?’, in Allen et. al., op. cit. p. 230. Similarly Weyers, H. L., ‘The Economic Treatment of Traffic Accident Facts and Perspectives in the Federal Republic of Germany’, Aktuele Problemen van verzekeringsrecht, Ghent, 1974, p. 81Google Scholar, complains that German reforms have given too little consideration to the goals of the social security system as a whole. ‘There is no reason whatever to give traffic accidents special treatment. Such a move might be justified by technical reasons, in a long term strategy of social security. If you cannot get wholesale social security, it seems rational to start where grievances are deepest and success seems politically attainable. But even then the details of planning for traffic accidents have to be subordinated to this overall concept and they cannot be justified, at least in an academic discussion – things may be different in day to day politics –, on grounds deriving from the situation of the traffic victim alone’.

12 Introduction to Allen et. al., op. cit. p. 8. Another Commissioner has written in a similar vein suggesting that lack of principle is ‘said with greater propriety about the views of its critics’ rather than the views of the Commission itself. See Marsh, N. S., ‘The Pearson Report’, Law Quarterly Review 95 (1979), 514.Google Scholar But the author goes on to admit that the Commission's justification for separate treatment of road accidents was ‘not in itself…entirely adequate’.

13 See Orris, H. D., ‘The Road Injuries No-fault Compensation Scheme’, Justice of the Peace, 144 (1980), 24.Google Scholar

14 Social Insurance and Allied Services (Beveridge Report), Cmd. 6404, HMSO, London, 1942.Google Scholar

15 Ibid, paras. 81–5. The reasons have been criticized by Young, A. F., Industrial Injuries Insurance, Routledge and Kegan Paul, London, 1964, p. x and pp. 90–2Google Scholar, George, op. cit. p. 184; Calvert, H., Social Security Law, Sweet and Maxwell, London, 1978, pp. 311–12Google Scholar; Ogus, A. I. and Barendt, E. M., The Law of Social Security, Butterworths, London, 1978, pp. 299–300Google Scholar; Atiyah, P. S., Accidents, Compensation and the Law, Weidenfeld and Nicolson, London, 1980, p. 368Google Scholar; Higucha, T., ‘The Special Treatment of Employment Injury in Social Security’, International Labour Review, 102 (1970), 109Google Scholar; Lewis, R. K., ‘Tort and Social Security: The Importance Attached to the Cause of Disability with Special Reference to the Industrial Injuries Scheme’, Modern Law Review, 43 (1980), 514.CrossRefGoogle Scholar

16 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 290.

17 Ibid., Vol. III, para. 1009. But see the preference reconsidered by the DHSS in Industrial Injuries Compensation – A Discussion Document, London, 1980Google Scholar, and see Lewis, R. K., ‘Consultation and Cuts: The Review of Industrial Injury Benefit’, Journal of Social Welfare Law, (1980), 330.CrossRefGoogle Scholar

18 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 1014 and similarly see para. 1003.

19 But see Ison, T. G., ‘The Politics of Reform of Personal Injury Compensation’, University of Toronto Law Review, 27 (1977), 385, 398.CrossRefGoogle Scholar ‘Moreover because of the waste and anomolies that they perpetuate and increase, small steps in the direction of universal disability insurance may have the appearance of being steps in the wrong direction, while the truth is that the trouble is caused not by any error in direction but by the decision to proceed in small steps. The process also tends to expand the numbers of people with a vested interest in the conglomeration of categorized systems, and for that reason too many tend to delay rather than advance any more comprehensive reform.’

20 Justice, , Report on Compensation for Victims of Road Traffic Accidents (No-Fault on the Roads), Stevens & Son, London, 1974, p. 51.Google Scholar

21 Ogus, A. I., Corfield, P. and Harris, D. R., ‘Pearson: Principled Reform or Political Compromise?’, Industrial Law Journal, 7 (1978), 143, 146–8.CrossRefGoogle Scholar The analysis is repeated by D. R. Harris in ‘An Appraisal of the Pearson Strategy’, in Allen et. al., op. cit. pp. 89–95.

22 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, Vol. II, tables 2 and 4.

23 Ibid. Vol. I, para. 996. Similarly Marsh, op. cit. p. 552 stating that the road accident scheme is ‘a significant step towards the elimination of anomalies’.

24 For a criticism of the Commission's attitude to its terms of reference see Ogus, Corfield and Harris, op. cit. pp. 144–5.

25 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 1531.

26 See Elliott, D. W. and Street, H., Road Accidents, Penguin Books, Harmondsworth, 1968, p. 250.Google Scholar

27 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 997.

28 Ibid. Vol. I, para. 78. Motor injuries account for 58 per cent of total tort payments – Vol. II, para. 675.

29 Ibid. para. 1086.

30 The Times, 25 July 1978.Google Scholar

31 Justice Report, op. cit. p. 2. See also the Law Society's evidence to the Commission, Law Society Gazette, 72 (22 01 1975).Google Scholar

32 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 1009.

33 [1956] 1 All England Reports, 154.Google Scholar

34 Szakats, A., ‘The Re-emergence of Common Law Principles in the New Zealand Compensation Scheme’, Industrial Law Journal, 7 (1978), 216, 227.CrossRefGoogle Scholar See also Trindade, op. cit.

35 See the Department of Trade's, The Home Accident Surveillance System: The Third Twelve Months Data, London, 1980.Google Scholar

36 O'Connell, J., The Injury Industry, University of Illinois Press, 1971, p. 144.Google Scholar See his urging of reform for this country in ‘No-Fault Insurance for Great Britain’, Industrial Law Journal, 2 (1973), 187.Google Scholar

37 Elliott and Street, op. cit. p. 249.

38 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 287 and similarly para. 959. Motor vehicle accidents account for 13 per cent of all injuries, but for 17 per cent of hospital in-patient treatment for injury and as much as 34 per cent of all accidental deaths – Vol. II, para. 188.

39 But see the two categories described in para. 1643.

40 See Atiyah, Accidents, Compensation and the Law, op. cit. n.10, pp. 253–8.

41 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 1067.

42 Ibid.

43 See Atiyah, Accidents, Compensation and the law, op. cit. p. 243, and similarly in ‘What Now?’, op. cit. n.10, p. 239. The view is confirmed by the Personal Injury Survey carried out by the Pearson Commission. See the Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, Vol. II, Chapter 25 and especially tables 149–50.

44 Report of the Royal Commission on Civil Liability and Compensation for Peronal Injury, para. 996.

45 This argument is adopted by Elliott and Street, op. cit. p. 250. It was made more explicitly by the Chairman in his dissent in the Report of the New Zealand Committee on Absolute Liability, 1963Google Scholar, which considered the introduction of absolute liability for motor vehicles. See Ind. Views, Wild, para. 15.

46 Justice Report, op. cit. p. 2.

47 According to the Post Office an average of 173 postmen were bitten each year between 1972–74. This represented an incidence, of 1.6 per 1000 postmen. See the Report of the Royal Commission on Civil Liability and Personal Injury, Vol. II, para. 296.

48 Ibid. Vol. I, para. 287, and similarly para. 959, ‘we doubt whether any other type of accidental injury has a greater impact on everyday life’.

49 Ibid. para. 996.

50 Ibid. Vol. II, tables 1 and 2 reveal that in industry only 14 per cent of those injured and 2 per cent of those killed are women; on the roads 35 per cent of injuries involve women.

51 Ibid. para. 959 and Vol. II, Ch. 7, where Pearson acknowledges this. For detailed analysis of road accidents see Cohen, J. and Preston, B., Causes and Prevention of Road Accidents, Faber and Faber, London, 1968Google Scholar; Austin, M., Accident Black Spot, Penguin Books, Harmondsworth, 1968Google Scholar; Whitlock, F. A., Death on the Road: A Study in Social Violence, Tavistock Publications, London, 1971Google Scholar; Macmillan, J., Deviant Drivers, Saxon House and Lexington Books, 1975Google Scholar; HMSO, Transport Statistics Great Britain 1968–1978.

52 This is the average figure for the years 1976–1978. See The Fourteenth Report of the Criminal Injuries Compensation Board, Cmnd. 7396, HMSO, London, 1978.Google Scholar

53 See similarly Atiyah, Accidents, Compensation and the Law, op. cit. n.10, p. 240.

54 Whitlock, op. cit. p. 7.

55 ibid. pp. 8–11.

56 Elliott and Street, op. cit. p. 250.

57 Atiyah, Accidents, Compensation and the Law, op. cit. pp. 529–31.

58 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, para. 241.

59 The Centre for Socio-Legal Studies at Oxford mounted a national household survey of accident victims in 1976–77. Of 439 accident victims who blamed someone for their injury only 229 said that they thought that person should pay compensation. See Lloyd-Bostock, S., ‘Commonsense Morality and Accident Compensation’, in Farrington, D. P., Hawkins, K. and Lloyd-Bostock, S. (eds), Psychology, Law and Legal Process, Macmillan Press, London, 1979, pp. 99–100.Google Scholar

60 ‘Even if we are satisfied that the compensation systems existing at present conform to the popular sense of justice, we are still entitled to ask for rational justification of those systems.’ Atiyah, Accidents, Compensation and the Law, op. cit. p. 477.

61 Miers, D. R., Responses to Victimisation, Professional Books, Abingdon, 1978, pp. 33–46.Google Scholar

62 Lloyd-Bostock, op. cit. p. 97.

63 Law Society Gazette, 75 (22 March 1978), 289.Google Scholar

64 See Ogus, Corfield and Harris, op. cit.; Atiyah, Accidents, Compensation and the Law, op. cit. n.10, p. 240; Fleming, J. W., ‘The Pearson Report: Its Strategy’, Modern Law Review, 42 (1979), 249CrossRefGoogle Scholar; Hasson, R. A., ‘The Pearson Report – Something for Everyone’, British Journal of Law and Society, 6 (1979), 119CrossRefGoogle Scholar; see Tunc, A., Revue Internationale de Droit Compare (1978), 507.Google Scholar

65 Ogus, Corfield and Harris, op. cit.; Atiyah, Accidents, Compensation and the Law, op. cit. n.10, p. 240.

66 Report of the Royal Commission on Legal Services (Benson Report), Cmnd. 7648, HMSO, London, 1979.Google Scholar

67 See the newsletter of the Royal Institute of Public Affairs, No. 1 (1980), which calls for a re-examination of the effectiveness of Royal Commissions, and reported in The Times, 10 April 1980.Google Scholar The concern was prompted by an article in The Times, 5 December 1979Google Scholar, written by the Chairman of the Royal Commission on Gambling, Lord Rothschild. See also Bulmer, M. (ed.), Social Research and Royal Commissions, Allen & Unwin, London, 1980.Google Scholar

68 But the Commission's attitude to its terms of reference has been much criticized. See especially Ogus, Harris and Corfield, op. cit. pp. 144–5. Prest, A. R. (a member of the Commission) has said that the terms were drafted ‘with obvious and demonstrable lacunae’Google Scholar. See ‘Royal Commission Reporting’, Three Banks Review, 119 (1978), 3, n.5.Google Scholar

69 Chapman, R. A., The Role of Commissions in Policy Making, Allen & Unwin, Royal Institute of Public Administration Studies, London, 1973, pp. 176–7.Google ScholarCartwright, T. J., Royal Commissions and Departmental Committees in Britain, Hodder & Stoughton, London, 1975.Google ScholarRhodes, G., Committees of Inquiry, Allen & Unwin, London, 1975.Google Scholar

70 Chapman, op. cit.

71 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury, paras. 1713–18.

72 Report of the Departmental Committee on the Procedure of Royal Commissions chaired by Lord Balfour, Cd. 5235, 1910, para. 15. Similarly Chapman, op. cit. p. 187 arguing that there is now ‘a need for inquiries undertaken by much smaller committees of experts and for advisory bodies constituted on entirely different bases’.

73 In the addendum to Lord Pearson's obituary notice in The Times, 7 February 1980Google Scholar, Lord Allen (a member of the Commission) paid tribute to Lord Pearson's patience, courtesy and openmindedness, and to ‘his gentle but effective chairmanship of a large Commission which included members with widely differing backgrounds’.

74 Report of the Royal Commission on Civil Liability and Compensation for Personal injury, para. 1714.

75 Hasson, op. cit. pp. 125–6.

76 Marsh, op. cit.

77 See Lord Rothschild, op. cit. ‘The trouble about royal commissions is that they rarely, if ever, have any political sex appeal.’