<<

ńņš. 2
(āńåćī 18)

ŃĪÄÅŠĘĄĶČÅ

>>

not only between injury and damage resulting from natural causes on the one hand,
and human activity on the other (see 1.2); but also between injury and damage of

1 J. Stapleton, ā€˜Compensating Victims of Diseaseā€™ (1985) 5 Oxford J. Legal Studies 248; Disease and
the Compensation Debate (Oxford, 1986). It has been held that suļ¬€ering deep vein thrombosis as
a result of long distance air travel is not an accident within the terms of the provision of the
Warsaw Convention 1929 dealing with compensation: Re Deep Vein Thrombosis and Air Travel
Group Litigation [2005] 3 WLR 1320.


3
4 Chapter 1

the latter type according to whether the person responsible for it was in some sense
at fault. We will be considering to what extent these distinctions are justiļ¬ed. The
main questions to be addressed are: for what injuries and damage ought the law to
provide compensation? what form should that compensation take? how should it
be assessed? and who should pay for it? Important related issues include how com-
pensation systems are administered and how the law seeks to reduce the amount of
injury and damage inļ¬‚icted.
This book is principally concerned with personal injuries and death, and only
marginally with damage to property. The main reason for including some discus-
sion of property damage is that it allows some illuminating contrasts to be drawn
between diļ¬€erent possible ways in which a compensation system can operate. The
comparison, for instance, between the way in which tort law works in relation to
personal injuries and the way ļ¬re insurance works in relation to damage to houses
is so signiļ¬cant that it would be wrong to exclude all reference to property damage.
Just as the word ā€˜accidentā€™ has a number of senses, the meaning of the term ā€˜com-
pensationā€™ is also far from straightforward. Meanings of the word and the purposes
of giving compensation will be considered in detail later (17.1). Here it is suļ¬ƒcient
to note that lawyers generally think of compensation as a method of making good
a ā€˜lossā€™, of replacing something of which a person has been deprived. Lawyers use
the word ā€˜lossā€™ in a rather strange way to include many things that are not losses in
a literal sense, such as pain. In the context of personal injury, death and accidental
damage to property, compensation has two major purposes. First, it is designed to
make good measurable ļ¬nancial losses such as out-of-pocket expenses, income that
has been ā€˜lostā€™ in the sense that it can no longer be earned, and the cost of repairing
or replacing property which has been physically damaged or destroyed. Secondly,
it is designed to make amends for disabilities or loss of faculty, pain and suļ¬€ering,
or death of a close relative. Here also the lawyer thinks mainly of compensating in
ļ¬nancial terms: even though the ā€˜lossā€™ has no measurable ļ¬nancial value, compen-
sation in money can be, and is, given.
Another question closely related to those posed earlier is whether, as a society,
we are making the most sensible use of the resources devoted to compensation for
injury and damage. Even ignoring the controversial question of whether a larger
share of national resources should be devoted to such compensation, we cannot fail
to ask whether the resources already distributed to the injured and disabled are
being sensibly allocated. Do we over-compensate some and under-compensate
others? Is there any justiļ¬cation for compensating some people twice over and
others not at all for basically similar misfortunes?
The answers to these questions cannot be found by looking at any one segment
of the law. It is true that one large chapter of private law ā€“ tort law ā€“ appears to be
central to the questions posed, and a signiļ¬cant part of this book is concerned with
tort law. But to concentrate on this segment of private law to the exclusion of other
relevant areas of the law would give a very distorted view of the way in which the
problem of compensation for misfortunes is dealt with in our society. There are
Introduction: surveying the ļ¬eld 5

many other methods of compensation, such as the social security system and the
criminal injuries compensation system, which deal with disability and bodily
injuries. Personal accident insurance is also important ā€“ although it operates prin-
cipally, but by no means exclusively, in the ļ¬eld of damage to property.
Besides being only a part of the picture, in practice tort law operates very
diļ¬€erently from the way suggested by a simple statement of the relevant legal
rules. The development of liability insurance altered the administration and
ļ¬nancing of the tort system2 out of all recognition. Because the vast majority of
tort claims are settled out of court by the defendantā€™s insurance company, the
behaviour of insurance companies is at least as important to an understanding
of the way the tort system is administered in practice as is the behaviour of lawyers
and courts. In practice, most tort compensation is paid by insurers and not by the
people who commit torts.
Yet there are very important issues at stake here. If the person responsible for
injury or damage to another is not to pay the compensation, then who should pay
it? Furthermore, once it is conceded that tortfeasors (i.e. people who commit torts)
do not generally pay for the injury and damage they cause, other questions arise.
For example, should compensation be assessed diļ¬€erently depending on who will
pay it? Again, if the legally responsible party does not pay the compensation, why
should people be entitled to compensation only if there is someone legally respon-
sible for the injury or damage suļ¬€ered? Recognition that most tortfeasors do not
personally pay damages, and that most tort damages are paid either by the govern-
ment or by insurance companies, points to the conclusion that damages are
eļ¬€ectively paid for by society as a whole. But this recognition carries many other
puzzles in its wake. In particular, it raises the question of the relationship between
the welfare state and the tort system. Societyā€™s obligation to the injured and the dis-
abled is, it might be thought, discharged by the provision of social security beneļ¬ts,
the national health service and personal health and welfare services. What, then, is
the place of the tort system in all this?
In addition to questions of this kind, which arise from the practical operation of
the tort system, many complex problems arise from the interrelation of the various
systems of compensation operating simultaneously today. Should an injured
person be compensated through one system or another? Should an injured person
be allowed to collect compensation from more than one source? Should one com-
pensation fund be entitled, having paid out compensation to an injured person, to
recoupment from another fund? These questions have been dealt with to some
extent by the courts in relation to the tort system. But they also arise in relation to
compensation systems, which are rarely the subject of court proceedings. In order
to see these issues in perspective and to discuss them rationally, it is necessary to
look beyond the rules of tort law.

2 The phrase ā€˜the tort systemā€™ refers to the relevant rules of tort law and the machinery for using
those rules to obtain compensation.
6 Chapter 1

This book is primarily concerned with compensation for injury and damage,
but it is impossible to overlook completely the question of accident prevention.
Compensation is nearly always second best; prevention should be the ļ¬rst aim. Law
can play only a limited part in preventing injury and damage: the skills of mechan-
ics, engineers, psychologists, managers and so on are probably much more relevant.
Even when the law is invoked to prevent (or reduce) accidents, it is usually the crim-
inal law which is used; and in our legal system the criminal law does not have a great
deal to do with compensating people (although some would like to see this
changed). This book does not profess to deal at length with the role of the criminal
law in injury prevention, but the claim is often made that compensation systems
also perform the incidental role of reducing or preventing accidents, and this
subject is dealt with at length in chapter 17.


1.2 Natural and human causes
1.2.1 The issue
We noted earlier that the law draws a distinction between injuries and diseases
according to whether or not they are caused by the actions (or inaction) of some
human person. In the tort system this distinction marks the line between liability and
no-liability because compensation for injury or illness will be recoverable in a tort
action only if one of its immediate or proximate causes was the conduct of some
human person other than the claimant. This is so even if the defendant to the tort
action is a corporation. Normally there will be liability only if the person who caused
the injury is identiļ¬able.3 The Criminal Injuries Compensation Scheme (see ch. 12)
is also limited to injuries caused by someone other than the victim. By contrast, the
social security system is not so limited in its coverage: it draws no distinction between
disabilities with a human cause and disabilities resulting from ā€˜natural causesā€™.
Sickness and incapacity beneļ¬ts (12.5) are available to all disabled people regardless
of the cause of their disabilities. Industrial injuries beneļ¬ts (12.4.3) are only available
in respect of ā€˜injuries arising out of and in the course of employmentā€™; but while it is
probably true that most such injuries can be traced to a proximate human cause, the
claimant does not have to do this in order to qualify for beneļ¬ts.
It is important not to confuse the distinction between natural and human causes
with the distinction between traumatic injuries caused by accidents (in the sense of
sudden, short-lived events), on the one hand, and illnesses and diseases, on the other.
Many traumatic injuries (by which is meant injuries resulting from accidents as just
deļ¬ned) can be traced to a proximate human cause, but by no means all can: a person
may be struck by lightning, or swept out to sea and drowned, or have a heart attack
while driving and run into a roadside pole. Conversely, many illnesses and diseases
cannot be traced to any proximate human cause; but one of the great advances in
medical science in this century has been the discovery that very many diseases have

3 For an exception see 4.2.
Introduction: surveying the ļ¬eld 7

human causes.4 The most we can say is that a greater proportion of traumatic injuries
are probably attributable to human causes than of illnesses and diseases; and that
illness and disease account for a much greater proportion of human disability than
do traumatic injuries (1.4.2). It is also true, as a generalization, that responsible
human causes are much harder to identify in the case of many diseases than in the
case of traumatic accidents. The result is that, in practice, a much greater proportion
of victims of traumatic injuries receive tort compensation (and industrial and crim-
inal injuries beneļ¬ts) than do victims of illnesses and diseases. If proper attention
were to be paid to the compensation of those disabled by disease, the distinction
between human and natural causes would have to be abandoned.5
The distinction between human and natural causes can produce some striking
results. Why, for example, should a child born disabled as a result of negligence, on
the part of the doctor who delivered the child, be entitled to substantial compensa-
tion from the tort system, while the child born with similar congenital disabilities
receives no common law damages; or why should a person blinded in a criminal attack
be entitled to compensation from the Criminal Injuries Compensation Scheme while
a person blinded by a ā€˜naturalā€™ disease or by their own actions is entitled only to social
security beneļ¬ts? It has been suggested that ā€˜the view that brain-damaged babies
deserve more generous treatment than the congenitally disabled is rooted in the desire
for accountability, not compensationā€™.6 More generally, it might be argued that com-
pensating victims of human causes at a higher level than victims of natural causes is
a way of giving eļ¬€ect to notions of personal responsibility: a person should be
required to pay compensation for injuries if, but only if, that person was in some sense
responsible for the disabilities. But there are many ways of holding people account-
able for their actions other than by making them pay compensation; and even if we
accept that compensation for injuries caused by humans ought to be paid for by those
who cause them, it does not follow that those injured and disabled by human causes
should be treated more generously than those injured and disabled by natural causes.
Nevertheless, if compensation for disabilities was paid by individuals, the argu-
ment based on personal responsibility might have some force. However, we will see
that most tort compensation is not paid by individuals but by insurers, corpora-
tions and the government, and in this light it is less clear why tort-type beneļ¬ts
should only be available to those injured by human action. On the whole, those dis-
abled people who can recover tort damages or criminal injuries compensation are
much better provided for ļ¬nancially than those disabled people who must rely on
social security beneļ¬ts alone. Can this be justiļ¬ed in the light of the fact that the
tort system and the social security system are, in eļ¬€ect, both ļ¬nanced by the public
at large: in the case of the tort system, by insurance premiums paid by potential
tortfeasors, and in the case of the social security system, by all those who pay
National Insurance contributions and taxes?
4 See Stapleton, Disease and the Compensation Debate.
5 Ibid.
6 P. Fenn, ā€˜The No-fault Panaceaā€™ (1993) 100 British J. of Obstetrics and Gynaecology 103, 104.
8 Chapter 1


1.2.2 Societyā€™s ā€˜responsibilityā€™ for human causes
One possible answer to this is to say that society is ā€˜responsibleā€™ for injuries, diseases
and disabilities attributable to human conduct in a way in which it is not ā€˜respon-
sibleā€™ for naturally caused conditions because the former are, while the latter are
not, caused by people, or by the organization of society in certain ways. What does
this mean? It cannot mean that society is responsible for making good the conse-
quences of ā€“ or, in other words, is under an obligation to compensate for ā€“ injuries
with a human cause, because this begs the very question at issue. Society may also
regard itself as ā€˜responsibleā€™ for those disabled by natural causes in the sense that it
regards itself as obliged to maintain them at a reasonable standard of living; and it
would involve circular reasoning to justify diļ¬€erent treatment of diļ¬€erent classes of
disabled people by pointing out that society ā€˜accepts responsibilityā€™ for them in
varying degrees.
We might say that society is responsible for disabilities with a human cause
because it is ā€˜at faultā€™ or ā€˜to blameā€™ in respect of them. But this too is a diļ¬ƒcult argu-
ment to sustain because the concept of ā€˜faultā€™ being used here is very diļ¬€erent from
the concept of fault we apply to individuals. We might say, for instance, that society
is to blame for most road accidents because judges, magistrates, legislators, jurors,
the media, highway authorities, and so on, pay insuļ¬ƒcient attention to the ā€˜mas-
sacre on the roadsā€™ and because, as a society, we devote insuļ¬ƒcient resources to road
safety and to developing safer alternatives to road transport. There is an important
diļ¬€erence between this type of judgment and the judgment involved in a ļ¬nding
of negligence. The latter normally implies that the negligent party has paid too
much attention to his or her own interests, whereas our system of social decision-
making allows those in power to make decisions which are thought to be in the
interests of society as a whole, even if they inļ¬‚ict injury or harm on some people.
We may all share some of the blame for every road accident, but this is blame in a
quite diļ¬€erent sense from that embodied in the law of tort.
Another possible meaning of the ā€˜responsibilityā€™ of society for disabilities with
human causes might be found in the concept of cause. We might say that even if
society is not to blame for such disabilities, it nevertheless causes them in a way in
which it does not cause disabilities resulting from natural events. There are many
illnesses and diseases for which human conduct is in some sense responsible. For
instance, much bronchitis is caused by air pollution resulting from human activity,
much cancer is caused by smoking (both active and passive), and many diseases are
spread by the fact that people are brought into contact with one another in public
transport and workplaces, as a result of the way in which society organizes itself.
However, responsibility of this diļ¬€use type is very diļ¬€erent from the responsibility
which attaches in tort law to the proximate human cause of an individualā€™s disabil-
ities, and so it can hardly explain why victims of proximate human causes are better
treated by the law than victims of proximate natural causes. Of course, to say that
society causes disabilities is to say that people cause them by their actions or
Introduction: surveying the ļ¬eld 9

inaction. But the human conduct being referred to is usually very much more
remote, in a causal sense, from the disabilities than conduct which attracts tort lia-
bility. Sometimes it is said that society is responsible for the conduct of individual
citizens as when, for example, it is alleged that social deprivation leads people into
crime. Even assuming that such a connection could be demonstrated, it would not
follow that society should bear the cost of compensating the victims of violence by
individual criminals: the responsibility of the criminal is diļ¬€erent from the respon-
sibility of society.
There may be good arguments why society should compensate people disabled by
human conduct, but these do not depend on the fact that such disabilities are caused
by some members of society whether proximately or not, but on the fact that the dis-
abled need help. Therefore such arguments cannot be used to justify diļ¬€erent treat-
ment for those disabled by human actions and those disabled by natural causes.

1.2.3 Protecting reasonable expectations
An important aim of a compensation system is to minimize the hardships that arise
out of the disappointment of reasonable expectations, in particular, the expecta-
tion of regular future income (17.1.2.3). It might be thought that one of the reasons
why the law distinguishes between human and natural causes is that human causes
of disability tend to strike more suddenly and with little warning, whereas natural
causes tend to operate more slowly, thus giving the victim more time to adjust his
or her aļ¬€airs and lifestyle to cope with the disability. However, on examination, this
argument has very little force. It is true that being seriously injured or killed in a
road accident, for example, is a sudden misfortune. But by no means all traumatic
injuries are caused by human actions; even less are they all caused by anyoneā€™s fault,
and yet the tort system compensates chieļ¬‚y on the basis of fault. It is also true that
some diseases have a gradually disabling eļ¬€ect, but others do not; and a person
aļ¬„icted with a gradual disease is not necessarily better able, because the disease is
gradual, to take steps to ameliorate the misfortune it brings in its wake. Besides, the
nature of the disease as either sudden or gradual in eļ¬€ect is not related to whether
it is caused by people or by nature.
Perhaps one factor which inļ¬‚uences our attitude to whether disabilities from
particular causes deserve compensation is the relative frequency of disability from
that cause. Serious long-term disability (such as is apt seriously to disappoint
expectations) caused by human activities is relatively rare in our society, and so we
feel that those unfortunate enough to suļ¬€er from it ought to be compensated
because they have probably planned their lives and entered commitments on the
reasonable assumption that they will not be seriously disabled in this way. Thanks
to advances in medical science, serious or prolonged disease and premature death
resulting from natural causes are also relatively uncommon today, and people tend
to plan their lives on the basis that these misfortunes will not befall them. This
might encourage us to feel that compensation is as due here as in the case of dis-
ability from human causes.
10 Chapter 1

This would suggest that any argument which justiļ¬es compensation on the basis
of disappointment of expectations should focus not on the suddenness of the dis-
ability, but on its relative frequency and the extent to which people can reasonably
be expected to guard against the risk of disability by personal insurance.

1.2.4 Egalitarianism and the problem of drawing the line
Underlying the idea that people ought to be compensated for rare and uncommon
misfortunes but not for the common and widespread misfortunes which aļ¬€ect the
lives of all or of a large proportion of us, are notions of social equality, that we
should all have equal opportunities to enjoy life and to fulļ¬l ourselves. Such notions
may lead to the idea that people who suļ¬€er unusual losses ought to be helped by
being compensated, and that the cost of that compensation should be spread or dis-
tributed amongst those members of society who have been fortunate enough not
to suļ¬€er such losses. These ideas are vividly illustrated by the adoption of the prin-
ciple of State compensation for war property damage during the Second World
War. Sir Winston Churchill explained the genesis of the war damage scheme in his
history of the War in the following terms: 7
Another time I visited Ramsgate. An air raid came upon us, and I was conducted into
their big tunnel, where quite large numbers of people lived permanently. When we
came out after a quarter of an hour, we looked at the still-smoking damage. A small
hotel had been hit. Nobody had been hurt, but the place had been reduced to a litter of
crockery, utensils and splintered furniture. The proprietor, his wife and the cooks and
waitresses were in tears. Where was their home? Where was their livelihood? Here is a
privilege of power. I formed an immediate resolve. On the way back in my train I dic-
tated a letter to the Chancellor of the Exchequer laying down the principle that all
damage from the ļ¬re of the enemy must be a charge upon the State and compensation
be paid in full and at once. Thus the burden would not fall alone on those whose homes
or business premises were hit, but would be borne evenly on the shoulders of the
nation.

Here the justice of treating war damage as a charge on the State is clearly rested
on the notion of equality. Few would disagree with these sentiments. The ques-
tion is how far this principle can be extended. In his speech in the House of
Commons introducing the War Damage Bill, Churchill pointed out that the prin-
ciple of State compensation must be limited to direct loss from enemy action and
not extend to indirect loss such as loss arising from business failure. But was there
any sound reason for this limitation except that a scheme without it would be very
expensive?
The diļ¬ƒculty is, of course, to distinguish between those misfortunes we expect
people to bear and those which seem suļ¬ƒciently unusual that their victims deserve
our sympathy and ļ¬nancial help. We do not compensate people simply because

7 The Second World War, vol. II (London, 1949), 308. Churchill was one of the pioneers of social
insurance: Liberalism and the Social Problem (London, 1909), 309, 315ā€“16.
Introduction: surveying the ļ¬eld 11

their natural abilities do not allow them to earn as much as some others, but we do
compensate people whose earning power is reduced by a work accident (under the
industrial injuries scheme) or by someone elseā€™s fault (by imposing tort liability).
The social security system compensates earners for income loss resulting from
illness or accident, but it does not compensate people who have never been able
to work for their inability to do so. Again, people who suļ¬€er facial disļ¬gurement
in a work accident or as the result of a tort are compensated for their disability
as such, but people born with serious facial disļ¬gurement are not. Even if we
entirely abandoned the distinction between human and natural causes as a crite-
rion for compensating the disabled, it would not follow that we would compensate
everyone whose abilities or endowments were less than normal or average. Some
disabilities are just facts of life which we must all bear as best we can. At the end of
the day, it might not be possible to draw and justify distinctions between the dis-
abled on any more precise basis than that the notions of human individuality and
personal responsibility require people to cope themselves with (or to compensate
themselves for) certain types of diļ¬€erences between human beings which disad-
vantage some people compared with others. Few, if any, advocates of egalitarian-
ism see this notion as justifying or requiring the elimination of all diļ¬€erences
between individuals. Such distinctions are bound, however, to appear to some
extent ad hoc and arbitrary.


1.3 Mixed systems in a mixed society
We live in a society based on a mixture of political and economic principles. Many
aspects of peopleā€™s lives are regulated by the State, and a signiļ¬cant proportion of
peopleā€™s money is spent by the State. On the other hand, people are entitled, within
fairly broad margins, to spend the rest of their money on what they like and to
arrange their aļ¬€airs as they wish. British society runs according to a basic principle
that the prices of goods and services should be ļ¬xed by supply and demand, so that
prices reļ¬‚ect consumer preference; but at the same time, taxes and subsidies may
deļ¬‚ect consumer preferences from the directions they would take entirely
unaļ¬€ected by the Stateā€™s interference. Britain is a society in which there are great
inequalities of income and wealth, and in which a substantial degree of inequality
appears to be acceptable to many people; but at the same time some of the most
extreme and glaring forms of inequality of income are reduced by the taxation and
social security systems.
It is not surprising, therefore, that we have a variety of regimes for dealing with
the problem of compensation for misfortune. Some misfortunes are so trivial that
they are simply accepted as routine ups and downs of life; others are less trivial but
are still regarded as something that individuals should protect themselves against,
if they wish, by private insurance; still others are seen as suļ¬ƒciently important to
justify the State instituting a coercive system to ensure that compensation is paid to
the victim by some other person; and yet others are so important that the State takes
12 Chapter 1

upon itself the burden of raising money to provide compensation or to assist
victims with beneļ¬ts in kind.
Obviously the choice of one regime rather than another raises fundamental
political, economic and social issues. For instance, how far is a society justiļ¬ed in
requiring people to protect themselves against misfortune? Or to put the question
in another way, is society justiļ¬ed in instituting a system of compulsory insurance
against certain misfortunes? If so, what provides this justiļ¬cation? Again, if some
misfortunes are regarded as so serious and so deserving of the interference of the
State that it is willing to shoulder the burden of paying compensation, how is this
compensation to be funded? Should it be funded by an insurance system in which
premiums vary according to the risk insured against, or by a system of ļ¬‚at-rate pre-
miums? Or should the whole system be ļ¬nanced out of taxation? These questions
in turn raise important issues about income redistribution.
As for the aim of reducing or preventing injuries, it might seem at ļ¬rst sight
that it raises no fundamental political problems. Surely everything possible should
be done to prevent at least those accidents that cause personal injuries. On further
reļ¬‚ection, however, it will be seen that this is not so. Society does not try to prevent
all accidents, even those that cause personal injury. As a society we often have to
make choices between objectives: shall we permit such and such an activity even
though we know it will cause injuries? In making choices of this nature, there is
plenty of room for disagreement on ideological grounds. For instance, we may
decide to prohibit or regulate certain types of activity by statutory or administra-
tive machinery; alternatively, we may decide to leave them to be regulated by the
operation of a free market.
For example, it is known that young drivers cause more accidents than older
ones, and we may want to reduce the number of these accidents. How should this
be done? One way is to ļ¬x an age below which people are not allowed to drive; this
is 16 for a motorcycle, and 17 for a car. Another way is to use the law to require
drivers to insure, but to let the market provide the insurance. In this way, young
drivers will have to pay higher premiums because, as a group, they cause more acci-
dents than older people, and the costs of road accidents are mostly paid for out of
premiums ļ¬xed by normal insurance principles. In fact, of course, we use both
methods: statutory regulation (ļ¬xed age-limits) and the market (variable insurance
premiums), but the precise combination of these two methods is largely arbitrary.
Why 16 or 17 as the appropriate age limits? And are the extra premiums for young
people really ā€˜fairā€™? If a young person is allowed to drive at all, might it not be urged
that they should be treated like older and more experienced drivers?
The distinction between an individualistic and a more communitarian political
philosophy aļ¬€ects the choice of compensation systems in many ways. Com-
munitarians tend to favour active State participation in the provision of help and
care to those in need, whereas individualists often advocate that the State should
just provide a coercive mechanism (such as the tort system) for enabling injured
persons to obtain compensation from their injurers if they choose to. Individualists
Introduction: surveying the ļ¬eld 13

often favour providing assistance in cash, which the recipient can then use as they
choose, rather than assistance in kind.
The types and levels of compensation available to members of a particular
society will also depend to a great extent on the wealth of that society. In a society
which has ceased to depend on subsistence agriculture, the ļ¬rst need of an indi-
vidual is an income, and loss of income is the loss which ranks highest for com-
pensation purposes; although even in wealthy countries there is room for argument
about whether income should be replaced in full, irrespective of the size of the
income. If society can aļ¬€ord it, other ā€˜lossesā€™ may also be recognized as worthy of
compensation ā€“ such as loss of bodily function, pain and suļ¬€ering; and perhaps at
the end of the scale, mental distress from insult or indignity.
In Britain today we can in practice distinguish broadly between three diļ¬€erent
compensation systems according to the level of State involvement. First, there is
personal accident insurance through which individuals buy protection against par-
ticular misfortunes. In practice ā€“ and this must be emphasized ā€“ to the extent that
damage to property is compensated for, this is done almost entirely through per-
sonal insurance. People commonly insure against destruction of their houses by
ļ¬re. Motor vehicles, too, are often insured comprehensively, which means that the
owner will be compensated by their insurer for loss of or damage to the vehicle.
Property used in the earning of proļ¬ts, such as factories or oļ¬ƒces, or plant and
machinery, is often insured, not only for its own replacement value but also for loss
of proļ¬t that might result from its being damaged or destroyed. Personal accident
insurance can also be bought to provide protection against the risk of personal
injury, although this is relatively uncommon. But the State does not force people to
buy accident insurance, however prudent it would be to do so.
Despite the lack of direct State involvement in this area, the State does intervene
indirectly in various ways. It provides the legal framework within which people
can make insurance contracts and enforce them in the courts,8 and the activities
of insurance companies are regulated in certain respects. Many people depend
greatly on insurance companies in arranging their aļ¬€airs, and would suļ¬€er sig-
niļ¬cant loss and misfortune if an insurance company failed. There is a great public
interest in the solvency of insurance companies; although in Britain, while there
are statutory provisions concerned with the solvency of insurance companies
(imposing what are called ā€˜capital adequacy requirementsā€™), the way they ļ¬x
premiums is not controlled.
Secondly, we will consider the compensation system based on tort liability and
liability insurance. This system is concerned primarily (although by no means
exclusively) with providing compensation for personal injury and consequent loss of
income, pain and suļ¬€ering, and permanent or partial disability; for the death of an
earner, causing loss of support to dependants; and for the death of a spouse or a child

8 See generally M. Clarke, Policies and Perceptions of Insurance in the Twenty-First Century (Oxford,
2004).
14 Chapter 1

who did not support anyone but whose death causes grief and anguish. Here, once
again, the State provides the legal framework of rights and obligations and the system
of courts to enforce these rights and obligations. In addition, in important areas the
State has used its coercive power to require potential tortfeasors to take out insurance
against the risk of their being held liable. Users of motor vehicles must insure against
liability for personal injury (and property damage) caused by their cars, and employ-
ers must insure against liability to their employees for injuries suļ¬€ered at work. The
function of compulsory insurance is not really to protect the insured against the cost
of liability but rather to ensure that the victim receives adequate compensation.
Tort compensation is, in theory, usually available only if the injury or damage
was caused by someoneā€™s ā€˜faultā€™ ā€“ a very complex notion, which is examined in
chapter 2. In practice, tort liability is further restricted: most successful tort actions
arise out of road or industrial accidents. In fact, only a very small proportion of
injury victims receive any tort compensation.
The third compensation system to be considered consists of schemes operated
directly by the State. The National Insurance system primarily protects workers
against income loss, and provides for various needs resulting from illness and unem-
ployment; the industrial injuries scheme (13.4) deals with injuries suļ¬€ered and dis-
eases contracted at work; the Criminal Injuries Compensation Scheme (ch. 12)
compensates the victims of criminal violence to the person. Income support beneļ¬ts
(13.7) provide basic assistance to persons in need who do not qualify for other
beneļ¬ts. In addition to cash beneļ¬ts, the Welfare State provides a wide range of per-
sonal social services useful to those who suļ¬€er personal injury ā€“ the National Health
Service, rehabilitation and employment services, residential accommodation and
day centres, home helps and so on. Some groups of the disabled, especially blind
people, enjoy special tax concessions. Most social security beneļ¬ts are available to
those with the relevant need, regardless of whether the need was the result of natural
causes or human conduct; and, unlike most tort compensation, entitlement to social
welfare beneļ¬ts does not depend on proof that the need was the result of someoneā€™s
fault.
This social welfare system has very little contact with the tort system or with
private insurance systems, although the relationship between them causes problems.
Should a person be able to claim both tort compensation and social security beneļ¬ts?
Suppose an injured person receives free medical treatment: can that person recover
in a tort claim what it would have cost to have private treatment? Or suppose they
have private treatment when free treatment was available: can the cost of the private
treatment be recovered in a tort claim? And suppose private treatment is paid for by
private insurance: can the cost of the treatment be recovered in a tort claim?
All these issues are dealt with fully later. Here the point to note is how little the tort
system and the State welfare system have inļ¬‚uenced each other. They are utterly
diļ¬€erent from each other in structure, philosophy and execution. Tort oļ¬€ers ā€˜full
compensationā€™; social security a good deal less. Tort pays compensation for pain
and suļ¬€ering; social security does not ā€“ though it does pay something for some
Introduction: surveying the ļ¬eld 15

disabilities. Tort compensates in money alone; welfare programmes provide a variety
of beneļ¬ts other than money. Tort pays lump sum compensation; social security pay-
ments are nearly all made periodically. Tort depends in practice on liability insur-
ance; social security is ļ¬nanced by a mixture of personal (but compulsory) insurance
and taxation. Tort claims are mainly dealt with by private institutions, the insurance
companies; social security is administered by the State. The tort system is very much
more expensive to operate than the social security system. Above all, tort claims are
in the main conļ¬ned to cases in which fault can be proved against someone covered
by liability insurance; in the social security system fault is irrelevant.
As we will see, there are many defects in the tort system as a means of compen-
sating for misfortune and disability; but questions of reform are, unfortunately,
often discussed without proper attention being given to the complex interrelation-
ship between these three types of compensation system. The Pearson Royal
Commission on Civil Liability and Compensation for Personal Injury (which
reported in 1978) paid lip-service to the need to plan reforms in the light of both
the tort and the social security systems: ā€˜It is clear to us [the Report said] that the
two systems have for too long been permitted to develop in isolation from each
other, without regard to the fact that, between them, they meet many needs twice
over and others not at all.ā€™9 Unfortunately, as is explained more fully later, the
Report did not seriously and systematically face up to the problems of integrating
the two systems.
Fundamental questions of priorities arise both between the existing compensa-
tion systems, and between the existing systems and other forms of public expendi-
ture. As an example of the latter, should more money be spent on compensating the
injured and disabled and less (say) on schools or roads? This is a political question,
and although lawyers must not ignore such issues, they are not legal questions and
are not dealt with in this book. Also important is the question of whether society
strikes the right balance between accident prevention and compensation for acci-
dents. Would it be more cost-eļ¬€ective to devote a greater part of our resources to
accident prevention, even at the expense of what we devote to compensation? If we
spent more money on roads, would this enable us to save more than it costs in com-
pensation for road accidents? These are economic questions, but if lawyers are to
understand the role of the law properly it may well be necessary for them to con-
sider such questions. They are touched on at various points in this book, though
considerations of space, if nothing else, preclude fuller discussion.
Of greater concern to lawyers are issues concerning priorities between the exist-
ing systems. For example, should tort compensation continue to be ā€˜fullā€™ when
social security beneļ¬ts are relatively low? Should a young childless dependent
widow be entitled to be maintained out of tort compensation if her husband is
killed by fault, while the social security system expects a childless widow of 44 to

9 Report of the Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd
7054, 1978) (Pearson Report), vol. 1, para. 271.
16 Chapter 1

earn her living if her husband dies a natural death?10 Should tort beneļ¬ts con-
tinue to be paid for ā€˜pain and suļ¬€eringā€™ and loss of amenities when social security
beneļ¬ts for permanent disability are conļ¬ned to industrial accidents? Should we
continue to allow people to recover compensation from more than one compensa-
tion system when many injured people are entitled, at most, to compensation from
one system? Is there any justiļ¬cation for paying more compensation for accidents
at work than for other accidents, as the social security system ā€“ but not the tort
system ā€“ does? Is there any justiļ¬cation for reducing the compensation payable to
a claimant when the loss is partly the claimantā€™s own fault ā€“ which the tort system
does regularly but the social security system very rarely? Should we concentrate
more help on beneļ¬ts in kind and less on ļ¬nancial assistance? How should the
cost of compensation systems be borne? Should the long-term disabled be treated
relatively more generously than those whose disabilities are short-lived? Should
those whose injuries result from someoneā€™s fault be treated more generously than
others? These and many other questions must be answered if our compensation
systems are to operate consistently with one another.
Forty years ago it seemed probable that the steady development of the welfare
state might well supplant the entire tort system in the foreseeable future. New
Zealand led the way with the total abolition of the tort action for damages for
personal injuries caused by accidents, and its replacement by a national accident
insurance scheme.11 An Australian committee of inquiry advocated a still more
comprehensive scheme that would have brought accidental injuries and diseases
under one national system.12 However, these proposals were never acted upon, and
are unlikely to be revived in any form in the foreseeable future.
In this country public dissatisfaction with the tort system as a means of
compensating accident victims began to be expressed in the 1960s. A move was
made in 1969 to persuade the Lord Chancellor to establish a Royal Commission
to examine the principles of liability for personal injury.13 The proposal attracted
some interest among lawyers, and it was subsequently supported by a Committee
chaired by Lord Robens, which reported on Safety and Health at Work;14 but there
was at ļ¬rst little public interest. However, in the early 1970s, widespread con-
cerns about a spate of compensation claims for congenital defects attributed to
maternal use of the drug Thalidomide suggested signiļ¬cant public dissatisfaction
with existing compensation laws, and the result was the establishment in March

10 Bereavement allowance is a contributory beneļ¬t payable to bereaved spouses and civil partners
without dependent children, between age 45 and retiring age, for a maximum of 52 weeks
(12.4.3.3).
11 Accident Compensation Act 1972. The scheme has been considerably changed since it was ļ¬rst
introduced: see further 17.1.2.
12 Australian Committee Report.
13 By means of a memorandum prepared by Professor Atiyah and subscribed to by 33 lawyers, par-
liamentarians and others. See (1969) 119 New LJ 653 for the text of the memorandum and The
Times, 5 July 1969.
14 See Report of the Committee into Safety and Health at Work (Cmnd 5304, 1972) (Robens
Committee Report) paras. 448ā€“50.
Introduction: surveying the ļ¬eld 17

1973 of the Royal Commission on Civil Liability and Compensation for
Personal Injury, chaired by Lord Pearson. The Commission reported in March
1978, but it rapidly became clear that the Report would not provide the basis for
any wide-ranging reforms acceptable to the government or the public. The Report
did not oļ¬€er anything in the way of a blueprint for an integrated compensation
system, nor even any serious strategy for developing the various existing systems
in a co-ordinated fashion. It contained a very large number of recommendations,
some of considerable value and some of which would have quite dramatic eļ¬€ects
on the number of tort claims (for example, in minor injury cases); it also con-
tained a great deal of valuable data about the operation of the tort system, much
of which will be referred to in the relevant places in this book. But apart from
leading to a few minor changes in the law, most of the Commissionā€™s work bore
no fruit.
Renewed concern in the mid-1980s about the cost and delays of the tort
system prompted the Lord Chancellorā€™s Department to conduct a Civil Justice
Review which led, inter alia, to a package of changes in the way personal injury
actions were dealt with by the courts, and to the enactment of a provision autho-
rizing the use of conditional fee arrangements for the ļ¬nancing of personal-
injury tort claims. In the 1980s the Legal Aid Board (now called the Legal Services
Commission) also began investigating and developing ways of facilitating multi-
party personal injury actions by changes in legal aid rules and administration.
However, the introduction of conditional fees eventually led (in 2000) to the
withdrawal of legal aid for the bulk of personal injuries litigation. As a result of a
recommendation of yet another inquiry into the civil justice system chaired by
Lord Woolf (Access to Justice, 1996), major changes (colloquially called ā€˜the Woolf
reformsā€™) were made to court procedure with a view to reducing expense and
delays.15
In the late 1980s, too, considerable pressure built up for piecemeal substantive
reform of the tort system. The medical profession, faced with rapidly increasing
liability insurance premiums, started pressing for the partial replacement of the
tort system with a no-fault compensation scheme for medical misadventure, but
the introduction in 1990 of ā€˜Crown (or ā€œNHSā€) indemnityā€™ (which means that
health authorities now pay damages awarded against NHS hospital doctors)
took the heat out of the campaign. Proposals by the Lord Chancellorā€™s Dep-
artment in 1991 for some form of no-fault compensation scheme for minor road
accidents were shelved. In the past decade the Law Commission has examined
many aspects of the assessment of damages for personal injuries, but this project
assumed the continued existence of the tort system and the other compensation
systems in their present form. So it seems clear that for the foreseeable future, the
basic structure of the diļ¬€erent compensation systems is likely to remain
unchanged. Apart from anything else, the political climate is unpropitious for any

15 See 10.2 for more details about procedure, legal aid and conditional fees.
18 Chapter 1

extension of the welfare state suļ¬ƒcient to render acceptable radical reform or
abolition of the tort system.


1.4 Some facts and ļ¬gures
Before we examine the various compensation systems in detail, it is worth attempt-
ing to paint with a broad brush a picture of the nature and extent of the social
problems with which they deal. But, ļ¬rst, it is necessary to say something at a
general level about the use of statistics. Wherever possible throughout this book,
the results of statistical surveys and other empirical evidence are used to illustrate
and support the analysis and argument. Those who, like me, have no training in
statistics, are not equipped to test the quality of such evidence or the methodology
by which it was generated. However, there are various reasons to be very cautious
about drawing ļ¬rm conclusions from such evidence. First, careful researchers are
typically explicit about the shortcomings and defects of their methodology: there
is a greater or lesser margin of error even in the most meticulous statistical studies.
At the other end of the spectrum, however, ļ¬gures are often given without any
indication or explanation of how they were arrived at, arousing the suspicion that
they are little more than ā€˜guesstimatesā€™. Such ā€˜junk statisticsā€™ are often used for
rhetorical or propaganda purposes, to promote a particular cause or point of view.
Secondly, statistical information about particular topics often has to be derived
from disparate sources that used diļ¬€erent research techniques. So the consumer of
statistical evidence has to be aware of the danger of comparing like with unlike (as
it were). Thirdly, the world changes and life moves on. Statistics, even if highly
trustworthy at the time they were collected, can go out of date and may become
more or less worthless as the years pass. Fourthly, some important points about
the validity of statistics will be obvious even to the innumerate. For instance, sta-
tistics about how many people are killed in road accidents, and about the circum-
stances of those deaths, are likely to be very accurate because most serious road
accidents are witnessed, analysed and recorded in detail. By contrast, there has,
until very recently, been no system for recording, and analysing the causes of,
deaths in hospitals; and so estimates of how many such deaths are the result of neg-
ligence, or could have been avoided, are less reliable and more contested than the
road fatality ļ¬gures. Although it is highly desirable that analysis and critique of the
law and practice of compensation systems be based on sound empirical evidence,
for the foregoing reasons (amongst others) it is important to take a critical
approach to the increasing volume of data relevant to the subjects discussed in this
book.

1.4.1 Accidents causing personal injury or death
In 2003 about 11,300 deaths by accident were recorded in England and Wales. Some
3,200 deaths were the result of road accidents (roughly the same as the number of
deaths by ā€˜intentional self-harmā€™); about a hundred resulted from other transport
Introduction: surveying the ļ¬eld 19

accidents, and about 230 from work accidents.16 Fires caused about 360 deaths. In
1987 it was estimated that as many as 1,000 people die each year as a result of mishaps
associated with surgery.17 In 2002ā€“3 around 800 oļ¬€ences were recorded as homicide
(that is, murder, manslaughter and infanticide). The number of deaths in any cate-
gory should be distinguished from the risk of dying. Although, it seems, more people
die in accidents in the home than on the roads, it has been estimated that the risk of
dying in a road accident is ten times greater than that of dying in a home accident.18
The number of accidental injuries obviously depends on the deļ¬nition of injury
that is used. The Pearson Commission adopted a deļ¬nition that included only those
injuries that resulted in an absence from work of 4 days or more; and for those not
at work, an injury of comparable severity. This is a convenient working deļ¬nition
because it ļ¬ts in with the operation of the social security system which, in general,
only provides beneļ¬ts for those oļ¬€ work for more than 3 days; and it also matches
the deļ¬nition of workplace injuries reportable to the health and safety authorities.
But the statistics that follow are gleaned from various sources, and it is not always
clear what deļ¬nition of injury has been used in their compilation. So they should
be taken as giving only a very approximate idea of the incidence of accidental injury.
Nevertheless, more recent ļ¬gures have, where available, been used in preference to
the Pearson ļ¬gures because there is good reason to think that in some areas, at least,
the Pearson ļ¬gures may not represent the present position.
The Pearson Report found that there were some 3 million accidental injuries each
year in Britain.19 In 2004 some 278,000 people were recorded20 as having suļ¬€ered
injury as a result of road accidents; and about 151,000 were reported21 as having
been injured as a result of work accidents. According to the Pearson Commission,
some 55,000 people are injured each year as a result of violent crime. It has been esti-
mated that about 11,000 victims of burns need medical treatment each year; and
that a third of all accidental injuries requiring medical treatment occur in the

16 Like the total number of accidental deaths, the number of deaths on the road has dropped
dramatically in the last 35 years from about 8,000 in 1971. For an examination of some of
the reasons see R.B. Noland and M.A. Quddus, ā€˜Improvements in Medical Care and Technology
and Reductions in Traļ¬ƒc-Related Fatalities in Great Britainā€™ (2004) 36 Accident Analysis and
Prevention 103; R.B. Noland, ā€˜Traļ¬ƒc Fatalities and Injuries: The Eļ¬€ect of Changes in
Infrastructure and Other Trendsā€™ (2003) 35 Accident Analysis and Prevention 599. The number of
employees killed at work dropped from 1,228 in 1961 to 227 in 2002ā€“3 and 220 in 2004ā€“5, largely
as a result of changes in employment patterns away from high-risk industries.
17 Conļ¬dential Enquiry into Perioperative Deaths (Nuļ¬ƒeld Provincial Hospitals Trust, 1987).
18 Report of HM Chief Medical Oļ¬ƒcer, On the State of Public Health, 1995 (HMSO) ā€“
1:1,000ā€“10,000 as opposed to 1:10,000ā€“100,000.
19 Pearson Report, vol. 2, paras. 16, 22.
20 Department for Transport, Road Casualties in Great Britain 2004, table 5c. This ļ¬gure does not
take account of unreported or unrecorded injuries, of which there are thought to be very many.
We know, for instance, that road accidents gave rise to more than 400,000 successful personal
injury tort claims in 2004ā€“5: 8.3.1.
21 Reportable injuries are those that lead to an absence from work of more than 3 days or fall into
one of a number of categories of ā€˜majorā€™ injury. It has been estimated that less than half of
reportable non-fatal injuries are reported. The 2003ā€“4 Labour Force Survey estimated that there
were around 363,000 reportable injuries in that year.
20 Chapter 1

home.22 It has also been estimated that in 2002 around 2.7 million people suļ¬€ered
injury ā€˜serious enough to warrant a visit to hospitalā€™ as a result of accidents in the
home; and that another 2.8 million or so suļ¬€ered such injury in leisure accidents.23
In 1994 it was suggested that 13,000 cases of permanent disability (and 27,000
deaths) a year may be ā€˜due wholly or partly to medical interventionā€™.24 More recent
research in several countries suggests that 10% or more of patients admitted to
acute-care hospitals suļ¬€er an ā€˜adverse eventā€™ as a result of ā€˜medical managementā€™, and
that a signiļ¬cant proportion of these are ā€˜preventableā€™.25

1.4.2 Death and disability from other causes
In order to keep the problem of accidental injury in perspective, it is necessary to
appreciate that disabilities attributable to birth defects and to illnesses and diseases
resulting both from natural causes and potentially actionable human activity
(diseases caused by exposure to asbestos26 and deformity caused by the drug
Thalidomide are examples of the latter) are very much more widespread than those
attributable to what we would normally think of asā€˜accidentsā€™. In 2002, the male death
rate from cancer in England was 275.3 per 100,000, and from circulatory disease,
385.2 per 100,000; while the male death rate from ā€˜all accidents and adverse eventsā€™
was only 23.1 per 100,000 and from road accidents, 9.2 per 100,000.27 The Pearson

22 Home Accident Surveillance System 20th Annual Report (Department of Trade and Industry, 1996).
A Department of Health report estimates that each year, 200,000 victims of non-fatal home and
leisure accidents spend 4 or more days in hospital: Preventing Accidental Injury ā€“ Priorities for
Action (2002), 5.
23 24th (Final) Report of the Home and Leisure Accident Surveillance System, 2000ā€“2002 Data (DTI,
2003), HASS table 1 and LASS table 1 respectively. Research from the Netherlands estimates that
three-quarters of injuries leading to medical treatment are the result of home and leisure acci-
dents: S. Mulder et al., ā€˜Epidemiological Data and Ranking Home and Leisure Accidents for
Priority Settingā€™ (2002) 34 Accident Analysis and Prevention 695.
24 M. Ennis and C. Vincent, ā€˜The Eļ¬€ects of Medical Accidents on Doctors and Patientsā€™ (1994) 16
Law and Policy 97, 99. A report in 1997 said that infections caught in hospital are solely responsi-
ble for 5,000 deaths a year and partly responsible for another 15,000; and that one-third of hos-
pital infections are preventable: The Times, 16 September 1997.
25 E.g. C. Vincent, G. Neale and M. Woloshynowych, ā€˜Adverse Events in British Hospitals:
Preliminary Retrospective Record Reviewā€™ (2001) 322 Brit Med. J. 517; G.R. Baker et al., The
Canadian Adverse Events Study: The Incidence of Adverse Events Among Hospital Patients in
Canadaā€™ (2004) Canadian Medical Association J. 1678; National Audit Oļ¬ƒce, A Safer Place for
Patients: Learning to Improve Patient Safety (HC 456, 2005ā€“6). The whole issue of illness, injury
and death as a result of medical mishaps has become politically very hot in recent years. In the
UK, 2001 saw the establishment of the National Patient Safety Agency, one of the functions of
which is to collect data on hospital-patient safety. Its ļ¬rst report, Building a Memory: Preventing
Harm, Reducing Risk and Improving Patient Safety, was published in 2005. In years to come it
should provide valuable data on the incidence of harm resulting from mishaps in hospitals. In
Australia, the Australian Institute of Health and Welfare has recently begun collecting data on tort
claims against hospital doctors: Medical Indemnity National Data Collection: Public Sector (2005).
26 It has been estimated that asbestos-related deaths will peak in 2020 at 3,300 a year. Asbestos will
perhaps turn out to be the source of the largest single group of tort claims for illness as opposed
to accident. Estimates of the total bill for asbestos compensation go as high as Ā£8 billion. For a
wealth of information about asbestos claims in the USA see S.J. Carroll et al., Asbestos Litigation
(RAND Institute for Civil Justice, 2005).
27 Health and Personal Social Services Statistics, England, table A3. Signiļ¬cantly fewer women than
men died by accident: 16.8 and 2.8 per 100,000 respectively.
Introduction: surveying the ļ¬eld 21

Commission estimated that only about 10% of disabled adults were disabled by
injury;28 and that not more than 1 or 2% of disabled children were disabled as a result
of injury, by far the greater number having been disabled as a result of congenital
defects, and rather under 10% having been disabled by disease.29 Even among
amputees, for instance, disease accounts for about 77% of the cases, and accidents for
only about 18%.30 In 2004 about 2.4 million people were in receipt of incapacity
beneļ¬t, but in only about 147,000 cases was the recipientā€™s incapacity attributable to
ā€˜injury, poisoning or other consequences of external causesā€™ as opposed to disease and
congenital defects.31 On the other hand, disablement is much more likely to be the
result of accident among those of working age than among the old.
Amongst victims of illness and disease, only a very small proportion are victims
of disease caused by potentially actionable human activities; but the absolute
number of deaths and disabilities attributable to such diseases is undoubtedly
signiļ¬cant, and much greater than the number of deaths and disabilities attribut-
able to accidents.32

1.4.3 The prevalence of disability
A great deal of information about the extent of disabilities in Britain became avail-
able as a result of a major government survey, the results of which were published
in 1988ā€“9.33 This survey estimated that there are some 360,000 disabled children
under 16 and 6.2 million disabled adults in Great Britain.34 These ļ¬gures by them-
selves are, however, apt to mislead because the survey adopted a wide deļ¬nition of
disability; and because a very large proportion of the disabled (80% of disabled
men and 84% of disabled women) are over normal retiring age. For the purposes
of this book, which is mainly concerned with lost income, ļ¬gures relating to those
of normal working age are more important. The survey classiļ¬ed the disabled into
ten categories according to the severity of their disabilities, 1 representing the least
degree of disablement and 10 the most severe disablement. Table 1 summarizes the
ļ¬ndings of the survey.

1.4.4 The effect of disability on income
The OPCS Disability Survey found that the majority of disabled adults live in
family units containing no earner. Only a minority of disabled adults under pen-
sion age were in paid employment, and the proportion of disabled people who

28 Pearson Report, vol. 2, para. 35; but the term ā€˜injuryā€™ is not given a precise meaning: Stapleton,
Disease and the Compensation Debate, 6.
29 Pearson Report, vol. 1, para. 1519; vol. 2, table 54.
30 Aids for the Disabled (London, 1968), para. 21.
31 Social Security Statistics 2004, Incapacity Beneļ¬t, table 4.
32 Stapleton, Disease and the Compensation Debate, 6ā€“8.
33 OPCS Disability Survey Reports 1ā€“6.
34 A follow-up study in 1996/7 put the number of disabled adults at more than 8.5 million (20% of
the adult population): E. Grundy et al., Disability in Great Britain: Results for the 1996/7 Disability
Follow-Up to the Family Resources Survey (DSS Research Report No. 94, 1999). The distribution
of the disabled according to severity was similar in the two studies.
22 Chapter 1

Table 1. Numbers of disabled persons in Great Britain by age and degree of
disability (thousands)

Age group Categories 1ā€“3 Categories 4ā€“6 Categories 7ā€“10

0ā€“15 ,100 ,123 137
16ā€“29 ,125 ,127 86
30ā€“49 ,271 ,273 151
50ā€“59 ,409 ,252 131
60ā€“69 ,713 ,390 ,231
70+ 1,158 ,916 ,858
Total 2,776 2,081 1,594
16ā€“59 ,805 ,652 ,368


worked was much lower than that in the general population. The more disabled
a person was the less likely that they would work. Only 2% of disabled adults
under pension age in severity category 10 worked, whereas 24% in categories 5 and
6 worked, and 48% in category 1. On the whole, disabled adults in full-time
employment earned signiļ¬cantly less than non-disabled adults. The mean equiva-
lent income35 of non-pensioner family units containing a disabled person was only
72% of that of non-pensioner family units in the general population. And whereas
34% of the former had income less than half the mean equivalent, only 23% of
the latter did. The OPCS Disability Survey also found that 23% of families headed
by a person under pension age and containing a disabled adult were in receipt of
supplementary beneļ¬t under the social security system.36 In 2005, about half of all
recipients of income support under the age of 60 are disabled.37 Table 2 shows the
proportion of income received from various sources by family units containing a
disabled person (as reported by the OPCS).
The eļ¬€ect of premature death on the income of the deceasedā€™s dependants is
really impossible to ascertain from available statistics.

1.4.5 Distribution and sources of compensation
The Pearson Report estimated the number of injured persons who received
compensation from various sources, and the relative proportions of societyā€™s total
provision for the injured which was attributable to the various compensation
systems. Of the total number of some three million persons suļ¬€ering an injury (as
deļ¬ned by the Commission), only some 1.7 million, or about 55%, were estimated
to receive any ļ¬nancial assistance at all. Some of these received compensation from
more than one source, as set out in table 3.

35 The equivalent income reļ¬‚ects diļ¬€erent amounts of income which diļ¬€erent families require to
maintain the same standard of living.
36 Which was the main income-support beneļ¬t at the time of the survey.
37 Income Support Quarterly Statistical Enquiry, February 2005, table IS 1.2.
Introduction: surveying the ļ¬eld 23

Table 2. Sources of income of family units containing a disabled adult by severity of
disability (%)

Severity category 1ā€“2 5ā€“6 9ā€“10 all

Earnings 56 43 18 41
Beneļ¬ts 30 48 73 49
Other 14 9 9 10


Table 3.38 Numbers of injured persons obtaining compensation from diļ¬€erent
sources

Source of compensation Number of new beneļ¬ciaries
per annum (thousands)

Social security 1,550
Tort ,215
Occupational sick pay 1,000
Occupational pensions ,4
Private insurance (excluding life insurance) ,200
Criminal injuries compensation ,18
Other forms of compensation ,150
All forms of compensation 1,700


Thus, of the estimated 3 million persons suļ¬€ering some injury in each year, only
some 215,000 (approximately 7%) received any compensation in the form of tort
damages.39 However, the total value of the damages paid to this 7% was almost half
of the total value of the social security payments made to the million and a half
recipients of those payments. When account is then taken of the administrative
costs of the diļ¬€ering compensation systems, the position is even more striking,
because the tort system is much more expensive to administer. The ļ¬gures are set

38 Pearson Report, vol. 1, table 4. The last ļ¬gure in this table takes account of double counting.
39 D.R. Harris and others, Compensation and Support for Illness and Injury (Oxford, 1984) (Harris
1984 Survey) found that 12% of its sample of accident victims obtained some damages through
the tort system. This higher ļ¬gure probably results from the fact that about 40% of the sample
suļ¬€ered ā€˜lasting physical eļ¬€ectsā€™ as a result of their injuries. In other words, the sample contained
a high proportion of cases involving injuries much more serious than those which met the Pearson
deļ¬nition. The more serious the injuries, the more likely it is (other things being equal), that tort
compensation will be claimed and obtained. As we will see later (8.1.4), the number of successful
tort claims today is around 750,000 per annum. However, we have no equivalent contemporary
ļ¬gure for the number of persons suļ¬€ering personal injury (as deļ¬ned by the Pearson
Commission), and so it is impossible to say whether the increase in successful tort claims repre-
sents an increase in the proportion of injured persons who receive some tort compensation.
According to an estimate made in 2000, some 11.2 million people a year suļ¬€er personal injury. If
this is correct (and there is no way of knowing), the proportion who recover tort compensation
is slightly lower than the Pearson estimate.
24 Chapter 1

Table 4.40 Cost of compensation paid from diļ¬€erent sources to injured persons
and administrative costs of payments, average over 1971ā€“6 (1977 currency values)

Source of compensation Annual payments Administrative
(Ā£s) costs p.a. (Ā£s)

Social security 421 million 47 million
Tort 202 million 175 million
Occupational sick pay 125 million *
Occupational pensions 5 million *
Private insurance (excluding life insurance) 51 million *
Criminal injuries compensation 17 million 1.7 million**
Other forms of compensation 6 million *

* *No estimates provided by the Pearson Commission
** Estimates based on reports of Criminal Injuries Compensation Board


out in table 4, from which it will be seen that of the total cost of compensation paid
(on average in each of the years 1971ā€“6) of some Ā£1 billion, the tort system
accounted for no less than Ā£377 million.
Thus 7% of the accident victims accounted for perhaps 37% of the total cost
(payments plus administration) of the compensation paid out (making some
allowance for the unestimated administrative costs). It must be pointed out at once
that the 7% who received tort damages certainly included a disproportionate
number of the more seriously injured, so that one would not expect the tort victims
to have received only the same proportion of payments as their number bears to the
whole. Nevertheless, it seems that, even allowing for this fact, the beneļ¬ciaries of the
tort system came oļ¬€ remarkably well compared with all the other injured. Indeed,
their position was even better than is indicated by this table because many of those
who obtained payment of tort damages would also have been beneļ¬ciaries under
one or more of the other compensation systems. For example, about three-quarters
of those who received tort damages would also have received social security pay-
ments,41 and many of these would also have received occupational sick pay.42
Furthermore, the vast majority of those who receive tort compensation are the
victims of accidental injury. Only a very small number of those disabled from
birth or by illness or disease receive tort damages, not only because very many
such disabilities are the result of natural causes but also because, even if a parti-
cular victimā€™s disability was the result of intentional or negligent human action,
it will often be very diļ¬ƒcult or impossible to prove this with the degree of cer-


40 Based on Pearson Report, vol. 2, table 158.
41 Concerning the present position regarding cumulation of tort damages and social security pay-
ments see 15.4.5.
42 Pearson Report, vol. 2, para. 52.
Introduction: surveying the ļ¬eld 25

tainty the law requires. Most people disabled by illness or disease must rely on
various social security beneļ¬ts. So we have a situation in which (according to the
Commissionā€™s estimates) a very small proportion of the disabled received about
half of total compensation payments. Although we do not have equivalent con-
temporary statistics, there is no reason to think that the basic picture is
signiļ¬cantly diļ¬€erent today.
Preferential treatment of certain groups of the disabled does not end here. In
addition to compensation for loss of income, those fortunate enough to be com-
pensated under the tort system, the criminal injuries compensation system, or the
industrial injuries scheme, may also receive compensation for ā€˜loss of facultyā€™, or the
disability as such, regardless of whether it causes any loss of income. For example,
a person who loses sight in one eye may receive up to Ā£36,000 if there is a tort claim,
or a disablement pension of around Ā£36 per week if they qualify under the indus-
trial injuries scheme, even if the claimantā€™s earning power is quite unimpaired.
A disabled person who cannot claim under any of these schemes will not receive
any compensation for disability as such, even if they receive some compensation
for loss of earning power. We will meet such distinctions between diļ¬€erent groups
of the disabled time and again, and it is necessary to ask whether there is any
justiļ¬cation for them.

1.4.6 The more serious and the less serious
Of the very large number of injuries (even as deļ¬ned by the Pearson Commission)
it is clear that the greater number are of a relatively minor character; and, although
statistics are lacking, the same is also certainly true of disabilities caused by dis-
eases. For every person who is oļ¬€ work for months, hundreds are oļ¬€ work for
weeks; and for every one oļ¬€ for weeks, scores are oļ¬€ for days. For every one who
loses a leg or an arm or an eye, hundreds of others suļ¬€er nothing worse than
scratches and bruises. For every person totally blind there are many more partially
sighted. For every person who cannot walk, many more have diļ¬ƒculty in doing
so. For example, in 2002ā€“3 the rate of reported ā€˜majorā€™ work injuries amongst
employees was 113 per 100,000 whereas the rate of (less serious) injuries that
caused an absence from work of more than 3 days was 501 per 100,000.43 Of those
who were absent from work as a result of a workplace injury suļ¬€ered in 1989ā€“90,
42% were away for only part of a day, 13.4% were away for between 4 and 7 days,
and only 3.7% were absent for over 3 months.44 The Pearson Commission found
that most disablement pensions awarded under the industrial injuries (social
security) scheme are paid for under a year; and only about 30% are still being
paid 3 and more years after they are awarded.45 Of the 245,000 recipients of dis-
ablement pensions in 1996, some 133,000 were assessed at 24% disabled or less;
most recipients were assessed at between 20 and 54%. Only 12,000 were assessed
43 Health and Safety Statistics Highlights 2002/3, 30.
44 Employment Gazette, December 1992, 628, table 12.
45 Pearson Report, vol. 2, table 7.
26 Chapter 1

at 65% disabled or above; and only 5% were assessed as between 85 and 100%
disabled.46 Of the 1,710 people assessed as suļ¬€ering a prescribed disease under the
industrial injuries scheme in the March quarter of 2005, 1,090 were assessed
as less than 25% disabled, and only 420 were assessed as more than 55% dis-
abled.47 Similarly, of the persons who received tariļ¬€ awards from the Criminal
Injuries Compensation Authority in 2002/3, 60% suļ¬€ered injuries assessed at the
lowest 5 (out of 25) tariļ¬€ levels, and only 3 out of more than 42,000 recipients of
awards were assessed at the highest level.48
Translate bodily injuries into ļ¬nancial losses and the position is the same. For
everyone who counts their losses in thousands of pounds there are many more
who count their losses in hundreds of pounds. One survey among those who
recovered damages in respect of industrial injuries found that 20% received
less than Ā£100 each, another 25% recovered between Ā£100 and Ā£249, while only
19% obtained more than Ā£1,000.49 The Pearson Commissionā€™s own survey among
3,302 injured persons showed that 19% had no income loss at all (after allowing
for sick pay), that 67% incurred income loss of under Ā£100 (1973 currency values),
some 3.7% had losses of between Ā£500 and Ā£999, and only 2.2% had losses exceed-
ing Ā£1,000.50 A study of insurance company payments, also made for the Pearson
Commission, showed that in the month of November 1973, nearly half the pay-
ments were of less than Ā£200, and only 1% exceeded Ā£5,000.51 The Harris 1984
Survey (based on data collected in 1976ā€“7 from 169 persons who received tort
damages) found that the mean amount of damages was Ā£1,135 while half of the
respondents received less than Ā£500.52 A large study conducted in the 1990s found
that of 80,000 personal injury claims for which legal aid was granted 70% resulted
in total damages of less than Ā£5,000, and 80% in total damages of less than
Ā£10,000.53
It is plain that long-term disability and chronic sickness raise social and ļ¬nancial
problems for the victim and the victimā€™s family diļ¬€erent in kind from those raised
by short-term sickness or minor injuries.54 Many (but by no means all) families
can weather a short period of lost or reduced income without great hardship.
Savings can be used; borrowing can be relied on; payment of bills deferred; expen-
diture can be cut down for short periods. So also minor disabilities that do not


46 Social Security Statistics 1997, table F2.05
47 Industrial Injuries Disablement Beneļ¬t Statistics: Quarter ending March 2005, IIDB 2.7. As we shall
see later, even 100% disablement is far from representing complete helplessness.
48 Criminal Injuries Compensation Authority, Annual Report 2002/3, table 1.
49 TUC Evidence to the Pearson Commission, table 6 (1977 currency values).
50 Pearson Report, vol. 2, table 78.
51 Ibid., para. 522.
52 Harris 1984 Survey, 86ā€“91.
53 Law Com. No. 287, Pre-Judgment Interest on Debts and Damages (2004), para. D33. The fact that
the cases were legally aided probably means that they were not the very smallest in value.
54 Recent research conļ¬rms what might be expected, namely that the incidence of long-term health
problems is much greater amongst accident victims than among the general population: Law
Com. No. 225, Personal Injury Compensation: How Much is Enough? (1994), 53ā€“9.
Introduction: surveying the ļ¬eld 27

aļ¬€ect earning power can be tolerated and lived with, even though they may be
permanent or long-lasting. But long-term or permanent income loss or reduction,
or permanent disabilities, are far more serious.
On the other hand, it is also the case that although a very small proportion of
accident victims suļ¬€er serious injury or heavy ļ¬nancial loss, they receive a very con-
siderable proportion of total payments of compensation. For instance, claims for
medical negligence in respect of birth-related brain damage represent only 5% of
claims against the NHS, but account for more than 60% of total expenditure on
medical litigation.55 The Pearson Commissionā€™s study of insurance payments
found that 1% of payments accounted for no less than 23% of the sums paid.56
A recent survey of medical negligence cases found that the top 10% of successful
claims by size of payment accounted for 76.1% of the total amount paid out, while
the bottom 50% by size accounted for only 3.5% of the total paid.57 Among the
recipients of criminal injury awards in 1979ā€“80, 2% (or 356 out of 17,460) received
approximately Ā£4.2 million, or 26.8% of the total sum paid out under the criminal
injuries scheme during that year.58
One conclusion of vital importance can be drawn from these facts, namely that
insistence on equal treatment for all cases is likely to prejudice satisfactory treat-
ment of the more serious cases because the impact of long-term serious disability
on peopleā€™s lives is likely to be relatively much greater than the impact of short-term
minor disability. To be satisfactory, a compensation system must achieve a proper
ļ¬nancial balance between treatment of more serious cases, on the one hand, and of
less serious, on the other. If we attempt to treat all cases alike, the paradoxical result
is that we end up in practice by treating the more serious and deserving cases less
generously. If one person is oļ¬€ work for 6 months and loses Ā£10,000 in wages, and
another person is oļ¬€ work for 2 days and loses Ā£200 in wages, and we cannot aļ¬€ord
to compensate them both in full, equality of treatment might suggest, for example,
that we pay the ļ¬rst person Ā£5,000 in compensation and the second person Ā£100 in
compensation. Yet this would probably cause much greater hardship to the ļ¬rst
person than the second.
Moreover, we know that large sums can be saved by eliminating the smallest
claims altogether. Although the smallest claims may not in aggregate be as great
as the few much larger claims, they still represent a substantial proportion of the
total sums paid out. They also account for a very large percentage of the admin-
istrative costs of any compensation scheme, since these costs are proportionate to
the number of claims as well as to the size of the claims. Administratively it is
likely to cost far more to process one hundred claims for Ā£100 each than one claim
for Ā£10,000 (even though the cost of processing a claim for Ā£10,000 will probably
be greater than the cost of processing a claim for Ā£100); and this is true whether

55 Department of Health, Making Amends: A Report by the Chief Medical Oļ¬ƒcer (2003), 47.
56 Pearson Report, vol. 2, para. 522.
57 P. Hoyte, ā€˜Unsound Practice: The Epidemiology of Medical Negligenceā€™ [1995] Medical LR 53.
CICB Sixteenth Report (Cmnd 8081, 1980), para. 8 (latest available ļ¬gure).
58
28 Chapter 1

the administration of the system is in the hands of courts, insurance companies,
the Department for Work and Pensions (DWP) or anyone else. Thus by refusing
to pay any compensation to the person who has lost Ā£100 we might be able to
aļ¬€ord to pay very much more to the person who has lost Ā£10,000, because for
every one who has lost Ā£10,000 there will be scores if not hundreds who have lost
only Ā£100. In the USA it has been calculated that the cost of workersā€™ compensa-
tion programmes can be reduced by no less than 17% by the simple expedient of
denying beneļ¬ts for the ļ¬rst 7 days of incapacity unless the incapacity lasts more
than 28 days.59
We shall see later that most of the compensation systems in operation today go
some way to meet the point being made here by eliminating the smallest claims.
Only the tort system clings to the principle of full compensation for all claimants.
There is a good case not only for eliminating certain small claims but, in addition,
for increasing the proportion of compensation payable in cases of more serious
or lasting injury. Since the tort system professes to make full compensation for
all injuries, it does not, in theory, allow the more seriously injured to be treated
relatively more generously than the less seriously disabled. In practice, however,
as we shall see later, the tort system does the converse and treats those with minor
injuries relatively more generously than those with serious injuries. Sick pay
schemes, also, understandably tend to be more generous to those oļ¬€ work for
short periods than to those with chronic disability. Of existing compensation
systems, only the social security system treats the long-term and more seriously
disabled relatively more generously than those who suļ¬€er minor and short-term
disabilities.
Another vital question, arising from these considerations, concerns the strategy
for future improvement. There seems no doubt that in the long run society will,
within the limits of its resources, gradually improve the provision it makes for the
accident victim, the disabled and the sick. This has been happening for many years,
and there is every reason to expect the process to continue. The crucial question,
however, is whether the process is to continue along a broad front, with steady but
necessarily slow improvement in the position of all those similarly placed; or, alter-
natively, whether some more fortunate groups among the aļ¬„icted are to be per-
mitted to advance ahead of others similarly placed. For example, are tort victims to
be permitted to continue reaping the great ļ¬nancial advantages of the tort action,
as compared with those unable to recover tort damages? If so, is the value of tort
damages to continue to be improved, as has been happening for some time, so that
the disparity in treatment becomes even greater? Are accident victims to continue
to receive favoured treatment as compared with victims of disease? Or, alterna-
tively, are all those unable to earn an income because of incapacity to be treated
equally, and perhaps not very generously at the outset, so that improvement will

59 Report of the National Commission on State Workmenā€™s Compensation Laws (Washington, 1972),
table 3.5.
Introduction: surveying the ļ¬eld 29

come gradually for all? Are tort-type beneļ¬ts to be provided for new classes of
victims unable to prove fault? And if so, on what principle are these new classes to
be selected, if indeed there is to be any principle at all other than that of giving most
to those with the loudest voices? These are diļ¬ƒcult questions to which we shall
return at various points.
Part 2

The tort system in theory
2

Fault as a basis of liability




2.1 The conceptual basis of tort law
The aim of this Part is to explain the main features of tort law as a system for com-
pensating for personal injuries and death, and to examine its main theoretical
defects as a compensation mechanism. We will focus on tort law because most
claims for damages for personal injuries and death are ā€˜made inā€™ tort; although
occasionally such a claim may be ā€˜made inā€™ contract or based on some statutory
cause of action. The boundaries of a legal subject are not set by divine prescript but
by the custom of lawyers. Tort law as a separate legal subject is largely a product of
the systematizing activities of academic lawyers in the nineteenth century. This
body of law deals with a variety of social and economic problems that may be
classiļ¬ed in a number of diļ¬€erent ways, for instance, by looking at the interest of
the person who complains of some injury: are they complaining about deprivation
of liberty; injury to their person or feelings; damage to property, or the invasion of
land; damage to reputation or invasion of privacy; injury to relations between
members of a family; damage to trade or business? Alternatively, problems may be
looked at in terms of the cause of the injury: who caused it; was it caused inten-
tionally, maliciously, negligently or without ā€˜faultā€™ on the part of anyone; did the
injured person play a part in causing the injuries?
A third way of classifying problems is according to the relationship between the
claimant and the defendant. For example, the liability of an employer to employ-
ees could be isolated as a subject for legal treatment on its own, and so also could
the liability of a manufacturer of products to a consumer injured by the use of the
product. Similarly, the liability of a landowner to neighbours, and the liability of
one road user to another, could be, and to a limited extent are, studied as separate
parts of tort law.
The result of all this is that the conceptual structure of tort law is disorganized and
ramshackle.1 On the one hand, we have the tort of negligence, which is based on the
blameworthy nature of the tortfeasorā€™s conduct and which covers not only injury to
the person and damage to property, but also, to some extent, purely ļ¬nancial loss. On


1 See generally P. Cane, The Anatomy of Tort Law (Oxford, 1997).


33
34 Chapter 2

the other hand, we have a collection of ā€˜speciļ¬cā€™ torts. Some of these are based on the
interest they protect (e.g. defamation, malicious prosecution and wrongful impris-
onment), others on the relationship between the parties (e.g. some types of nuisance,
and the form of liability known as the rule in Rylands v. Fletcher) and yet others on a
combination of the two (as with the ā€˜economic tortsā€™ such as intimidation and inter-
ference with contractual relations). Much of tort law is judge-made, but there is an
increasing number of ā€˜statutory tortsā€™ created by legislation, such as ā€˜strictā€™ liability
for defective products (which is discussed in ch. 4). Of all these torts, the tort of neg-
ligence is the most important for the purposes of this book because tort liability for
death and personal injury is most commonly based on the rules of the law of negli-
gence.


2.2 Negligence as a basis of liability
A loose synonym for ā€˜negligenceā€™ is ā€˜carelessnessā€™. To behave negligently is to be care-
less. But lawyers also say that negligence is a ā€˜distinct tortā€™. What this means is that
damage caused by negligent conduct is generally actionable irrespective of the kind
of activity out of which the damage arose. The tort of negligence thus extends over
the whole sphere of human activity and is not conļ¬ned, as are most other torts, to
particular types of conduct or activity. It concerns the way in which activities are
carried out, and not any particular activity; and it protects a variety of interests.
However, in practice the law of negligence is largely concerned with certain conse-
quences of two particular activities, that is, with bodily injury and, to a lesser extent,
damage to property suļ¬€ered on the roads and in the workplace.
Actions for damages for personal injuries constitute a signiļ¬cant proportion of
all civil litigation in Britain today. Moreover, we know that for every action for
damages for personal injuries that comes up for trial in court, another ninety-nine
claims are settled by negotiation. The total amount of money that changes hands
as a result of negligence cases (including settlements) is very large. It is true that the
maximum amount involved in a single personal injury or fatal accident claim is
relatively small compared with the maximum that may be involved, for example, in
a single commercial claim arising out of an important contract; but the total value
of personal injury and fatal accident claims is great. In quantitative terms, the tort
of negligence is of great importance in the process of compensating people for
unintentional personal injury.
The tort of negligence is said to consist of three elements: ļ¬rst, a duty to take care;
secondly, a breach of that duty; and, thirdly, damage caused by that breach of duty.
This third element can be subdivided into two further elements, namely that the tort-
feasorā€™s conduct must have been the ā€˜cause in factā€™ of the damage; and, secondly, that
it must have been the ā€˜legal causeā€™ of the damage. The second element (ā€˜breach of
dutyā€™) is concerned with the deļ¬nition of negligent (or, loosely translated, ā€˜carelessā€™)
conduct. Negligence is a species of ā€˜faultā€™, and it is with this that the remainder of this
chapter deals. The other two elements of the tort are examined in later chapters.
Fault as a basis of liability 35


2.3 The fault principle
Apart from negligence, the other main species of fault recognized by the law of torts
are intention and recklessness.2 To harm someone intentionally is to do some act
with the aim thereby of inļ¬‚icting injury, loss or damage on that person. To harm
someone recklessly is to do some act realizing that it may result in injury, loss or
damage to that person. Negligence consists of failure to take reasonable precautions
against risks of injury to others that one ought to have foreseen and guarded against.
Some claims for damages for personal injury or death arise out of intentional or reck-
less conduct, but the vast majority arise out of negligent conduct. In a few instances,
as we shall see in chapter 4, a claim for damages for personal injury or death may be
made against a person even if that person has not been at fault in any of the above
senses. But in general, tort liability for personal injury and death is based on fault. To
say that a person was at fault is to say that they should have behaved diļ¬€erently in
some respect.
Traditionally, the fault principle is seen as having two aspects: it has generally been
used both as a suļ¬ƒcient and (with a few exceptions) a necessary condition of and
justiļ¬cation for the imposition of liability to pay tort damages for personal injuries
and death. In other words, the principle asserts, ļ¬rst, that a person who causes injury,
loss or damage to another by fault should be required to compensate that other; and,
secondly, that a person who causes injury, loss or damage to another without fault
should not be required to compensate that other. But, as we shall see, the fault prin-
ciple, as it operates in tort law, also requires us to take account of any fault of the
claimant (C)3 that causes injury, loss or damage to C. We must, then, expand the ļ¬rst
proposition as follows: a person who causes injury, loss or damage, whether to them-
selves or to another, should bear the burden of that loss or damage to the extent
that it was caused by their fault. Of course, it is a corollary of the second proposition
that a person who suļ¬€ers loss as a result of events that were no-oneā€™s fault, must bear
that loss personally unless compensation is available from some other source.
As between an individual claimant and an individual defendant, these two
propositions stated in this general form seem perfectly just. But the fault principle
suļ¬€ers from serious defects, which will be examined in chapter 7.
The notion that tort liability should be based on fault has had a powerful
inļ¬‚uence on the minds of people generally and of lawyers in particular in the last
century or more, and it still exerts great force. Even (proposed) schemes of ā€˜strictā€™
liability (or ā€˜liability regardless of faultā€™, e.g. product liability)4 usually contain

2 See generally P. Cane, ā€˜Mens Rea in Tort Lawā€™ (2000) 20 OJLS 533.
3 For centuries, the party who initiates a legal claim under English law was called the ā€˜plaintiļ¬€ā€™. Now
the term used is ā€˜claimantā€™. In this book, the new term is used even in relation to events and cases
in the long period before the change. In Scots law, the term for a plaintiļ¬€ is ā€˜pursuerā€™ and for a
defendant, ā€˜defenderā€™. Some of the cases discussed in this book originated in Scotland because the
House of Lords is the ļ¬nal court of appeal for Scotland as well as England. But for the sake of sim-
plicity, even in relation to such cases, the terms ā€˜claimantā€™ and ā€˜defendantā€™ will be used.
4 See further ch. 4.
36 Chapter 2

numerous concessions to the fault principle. As we will see in due course, there have
been many legal developments in the last 80 years or so which have been designed
to facilitate the operation of the fault-based tort system of accident compensation.
These include the system of compulsory third-party insurance to cover liability for
road accidents, and of compulsory insurance to cover liability of employers to their
employees. There is also a body called the Motor Insurersā€™ Bureau (MIB) which is
designed to ļ¬ll the gap in the compulsory motor insurance system caused by failure
of vehicle owners to insure in accordance with the legal requirements; in addition,
the MIB accepts liability in some hit-and-run cases and in cases where the party at
fault was insured but the insurer has become insolvent.
Much other legislation has been passed which has improved the operation of
tort law as a compensation mechanism: the Law Reform (Miscellaneous Provisions)
Act 1934 allows actions to be brought against the estate of a deceased negligent
person; the Law Reform (Contributory Negligence) Act 1945 changed the law to
allow claimants to recover some damages despite having contributed by their own
negligence to the injuries suļ¬€ered; the Law Reform (Personal Injuries) Act 1948
abolished the doctrine of common employment and enabled employees to sue their
employers where they suļ¬€ered injury as a result of the negligence of a fellow
employee; and the Occupiersā€™ Liability Acts of 1957 and 1984, among other things,
simpliļ¬ed the law concerned with the negligence liability of occupiers of premises
to visitors.
Outside tort law, too, there have been legal developments based on the idea that
the fault principle provides a sound basis for a compensation system. Most notably,
under the Criminal Injuries Compensation Scheme (discussed in ch. 12), entitle-
ment to compensation depends on proof that someone was at ā€˜faultā€™ in the sense of
having committed a criminal act against the claimant.
In the rest of this chapter, we will examine the nature of negligence as a species
of fault.


2.4 Negligence as fault
2.4.1 A question of fact?
A requirement of success in an action based on the tort of negligence (or ā€˜in negli-
genceā€™ as lawyers say) is proof that the defendant was negligent. ā€˜Negligenceā€™ means
failure to take that degree of care which was reasonable in all the circumstances of
the case, or failure to act as a reasonable person5 would have acted. The question of
whether a person acted reasonably or not is often said to be a ā€˜question of factā€™, but
this is a misleading expression. It is necessary to distinguish between primary facts
and inferences or evaluations. What actually happened; how an accident occurred;


5 The classic phrase is ā€˜the reasonable manā€™. Without entering into a discussion of whether the stan-
dard of the reasonableness is gender speciļ¬c, in this book the word ā€˜personā€™ is used instead of ā€˜manā€™.
For a brief discussion see Cane, The Anatomy of Tort Law, 43ā€“4.
Fault as a basis of liability 37

whether the claimant did this or the defendant did that; what part was played by
third parties, and so forth ā€“ all these are questions of primary fact. Usually the judge
decides what the primary facts of the case were after hearing the evidence.
Sometimes there is no dispute about the primary facts: everyone agrees about what
happened. Sometimes it is not possible to reach any satisfactory conclusion about
the primary facts because the evidence is fragmentary ā€“ perhaps because the parties
were killed in the accident, or because the defendant is the only person who knows
what happened and takes refuge in silence, or for some other reason. In such cir-
cumstances the judge is still bound to make ā€˜ļ¬ndings of factā€™; that is, to determine,
in accordance with certain rules of law, procedure and evidence, what facts shall be
assumed to be the primary facts. The judge may hold particular facts to be estab-
lished because the contrary has not been proved, or because of some legal pre-
sumption, or because they are reasonable inferences from what has been proved, or
for some other reason.
When all ļ¬ndings of fact that are necessary or relevant have been made, the judge
will proceed to the second stage of the negligence inquiry, which is that of making
a judgment: given the ļ¬ndings of fact, was the defendant negligent? Although this is
also often referred to as a question of fact, this is a somewhat unfortunate usage. It
is quite true that in certain ways a ļ¬nding of negligence is treated as a question of
fact ā€“ for instance, a decision of this kind cannot technically constitute a precedent
for future cases. But in many other respects a ļ¬nding of negligence is treated rather
like a decision on a question of law. For example, appeal courts are sometimes pre-
pared to reverse such ļ¬ndings, while they are very reluctant to disagree with a trial
courtā€™s ļ¬ndings of primary fact. It cannot be proved that a person was negligent; one
can merely argue that the person was negligent and hope to persuade the judge by
argument.
At all events, a ļ¬nding that a defendant was negligent clearly involves making a
value judgment on that personā€™s conduct; and it is therefore necessary to discover
what criteria are employed in the process of making that judgment. The conven-
tional answer to this question invokes the somewhat mystical ļ¬gure of the reason-
able person. A person is negligent if they fail to take the degree of care that a
reasonable person would or does take. But this raises the further question of what
ā€˜reasonableā€™ means. Is the reasonable person black, coloured or white? Male or
female? Young, middle-aged or old? Christian, Muslim or of some other, or no, reli-

<<

ńņš. 2
(āńåćī 18)

ŃĪÄÅŠĘĄĶČÅ

>>