Article by P.S. Atiyah
Fifteen or twenty years ago the future of the negligence action in personal injury and death cases was a burning issue among tort lawyers the world over. Law reviews were full of articles condemning the ineffectiveness of the tort suit as a means of securing compensation for those injured in accidents, particularly road accidents. Many scholarly surveys demonstrated the great cost of subsidizing tort recoveries and liability insurance within one system, the large sums disbursed in pain and suffering awards, and the delays in tort litigation that affected legal systems in all the industrial countries of the world. Many new schemes were proposed and some were enacted to minimize or bypass the negligence action by the provision of no-fault compensation. In many of the United States, in Canada, and in Australia, limited no-fault schemes were enacted for the benefit of the road accident victim. In New Zealand, as all tort scholars know, a much more radical and ambitious scheme was brought into operation that involved total abolition of the action for damages for personal injury and its replacement by state-provided compensation on scales far exceeding those usually associated with social security programs. In Australia, a still more radical scheme was proposed which would have led to a system of state-provided compensation not only for accidental injury but also for diseases and congenital disabilities. In the United Kingdom, a Royal Commission on Civil Liability and Compensation for Personal Injury was established under the chairmanship of Lord Pearson in 1973; many lawyers anticipated at first that this Commission might well recommend sweeping changes similar to those adopted in New Zealand.
But now, as the 1970s draw to a close, the tide seems to have turned again. The no-fault movement in the United States appears to have run out of steam; no state has enacted a no-fault statute for some years, and there has been no disposition at all to extend the no-fault concept into other areas of activity, despite the many ingenious schemes designed for this purpose by Professor Jeffrey O'Connell. Moreover, the existing no-fault statutes all have monetary limits written into them—this affects the Canadian and Australian schemes also—and the increasing pace of inflation is fast eroding the value of the benefits available under the schemes. In many of the American schemes the falling value of the dollar affects not only the levels of benefits provided, but also the threshold below which the negligence action is barred. If enthusiasm for the no-fault concept wanes, it is likely that legislative tardiness in adjusting these monetary limits and thresholds will soon have a severely limiting effect on the practical efficacy of these various schemes. In Australia and the United Kingdom, too, the high hopes of radical reformers have been dashed. The Australian scheme seems now to have been permanently shelved after the change of government in 1975. In the United Kingdom, the Report of the Pearson Commission was published eventually in 1978 after five years of research and study, and it has also proved a disappointment. The main proposals in the Report are tame and unadventurous and consist chiefly of a large number of relatively minor adjustments to existing institutional arrangements. Such of their proposals as would have a significant practical effect—for instance a proposed threshold of ninety days for claims for nonpecuniary loss in tort—have fallen on stony ground and seem already to have been discarded by both major political parties.
The reasons for this general ebbing of enthusiasm for the no-fault cause are not far to seek. This turn of the tide is surely a part of the general conservative backlash of the past few years. In the United Kingdom, Australia, Canada, and New Zealand, right-wing governments have replaced liberal or left-wing governments in the past few years; in the United States, everyone is conscious that the present mood of the voters is unsympathetic to further expansion of governmental activity or to increases in taxes and social security provisions. Associated with this same backlash, perhaps the other side of the coin, are signs of a renewed faith in individualism. This belief in individual responsibility couples well, of course, with the traditional common law action for negligence. Individualism requires that those who are at fault for injuring their neighbors should make good the consequences; it also requires that individuals be treated as responsible for deciding against what risks, and to what extent, they should insure themselves. The person injured without fault on the part of anyone cannot, on this view, blame the system if he is uncompensated; he must blame himself for having failed to insure himself.
This is, therefore, a bad moment to be arguing for the virtues of no-fault compensation. The tide is running against such an argument. Nevertheless, it is precisely at such moments that the scholar has a paramount duty to speak out. Nobody can be wholly immune from the influence of shifts in ideologies and values, yet it is the scholar's duty at least to point out where fashionable ideologies are weak and inconsistent. It is also the scholar's duty to attempt to take a broader view and to discern how far swings and backlashes may turn out to be temporary phenomena. The current political backlash is likely the result of the economic difficulties that most of the industrial world has been experiencing. If we should pull through these difficulties, and if economic growth once again becomes part of the regular order of things, the present backlash may prove to be no more than a hiccough in the development of western societies.
About the Author
P.S. Atiyah. Professor of English Law, University of Oxford.
Citation
54 Tul. L. Rev. 271 (1980)