The Gazette 1971

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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