ACCIDENTS, COSTS AND LEGAL RESPONSIBILITY
| Author | Samuel Stoljar |
| Date | 01 May 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01364.x |
| Published date | 01 May 1973 |
THE
MODERN LAW REVIEW
Volume
36
May
1973
No.
3
ACCIDENTS,
COSTS
AND LEGAL
RESPONSIBILITY
IT
is strange to realise how much modern tort law has begun to
doubt its own viability.
For
the issue now widely raised is whether a
tort (or, more precisely, a fault or negligence) system can at all
cope with personal injuries caused by accidents, road accidents in
particular, and whether it should not be replaced by
a
compulsory
insurance scheme, financed by car owners
or
drivers
or
by tax-
payers generally, under which accident victims would receive fixed
compensation for their loss
or
for disability.’ Though the details
of the proposed schemes vary greatly, the chief difference between
any
of
them and tort law
is
that under the former a victim
is
com-
pensated out of a special fund for any accident-caused injury,
whereas in tort a victim cannot get compensation without showing
another person’s liability for the loss, whether the latter is insured
or
not. My present concern is with the implications of this pro-
posed abolition of tort-liability: not, to mention this at once, to
belittle the social need for a wider accident scheme (clearly there
is such a need), but rather to note two more fundamental points,
both very briefly
:
first, that the abolitionist arguments, though
they make a good case for reform, do not make a conclusive one
for
a
complete
break with tort principles; and secondly, that there
remains
a
perhaps diminished but still essential place, even in
accident-law, for traditional tort ideas that stress an element of
personal responsibility.
The case for abolition is broadly as follows. In dealing with
accident-victims, we have the choice of either (i) keeping the tort-
system, with its principles of fault
or
negligence, which will deny
1
One such scheme
ia
that provided by the New Zealand Accident Compensation
Bill
1971,
now before parliament, under which
all
industrial and motoring
accidents are to be covered, irrespective of fault, out of funds financed by
(amongst others) car-owner8 and drivers
as
well
as
by grants from the treasury.
The scheme is briefly described,
as
well
as
most cordially endoreed, by Atiyah,
Accidents, Compensation
and
the
Law
(London
1970)
p.
608
et seq.
Non-fault
accident insurance
is
also the feature of several American plans, the two most
prominent now being the Keeton-O’Connell plan and that
of
New York State, on
which see Calabresi,
The
Costs
of
Accidents: A
Legal
and
Economic Analysis
(New Haven
1970). 7, 313;
and
(1971) 71
Col.L.Rev., p.
194
et
seq.
288
VOL.
36
(3)
1
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