The Gazette 1971

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 47