From the Permissive to the Dismissive Society: Patrick Atiyah's Accidents, Compensation, and the Market
| Date | 01 June 1998 |
| Author | Wade Mansell,Joanne Conaghan |
| Published date | 01 June 1998 |
| DOI | http://doi.org/10.1111/1467-6478.00091 |
Review Article
284
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
INTRODUCTION
It is now almost thirty years since Professor Patrick Atiyah wrote his path-
breaking and devastating critique of the tort system in 1970.1Not only did
Atiyah spearhead a new way of thinking and learning about law, charac-
terized by Weidenfeld and Nicolson’s ‘Law in Context’ series which his book
launched, but he also laid bare the inadequacies of a system which failed both
on its own terms, as a mechanism for shifting loss in circumstances where it
was occasioned by individual fault, and in the terms defined by Atiyah (among
others), that is, as a mechanism of accident compensation. So influential were
his arguments that, for the next thirty years, he became equated in the minds
of law students with all that was wrong with the tort system and all that was
potentially right with its alternatives, including state-funded no-fault alter-
natives such as the New Zealand accident compensation scheme.
And yet, while Atiyah’s mighty tome still finds its way into the reading
lists of most tort courses, albeit given a contemporary twist by Peter Cane,2
the arguments he made so eloquently, arguments which echoed the spirit
of the times and joined with the voices of other leading scholars and policy-
makers,3appear to have had little practical impact. While successive
*
Kent Law School, Eliot College, University of Kent, Canterbury CT2 7NS,
England
From the Permissive to the Dismissive Society:
Patrick Atiyah’s Accidents, Compensation, and the Market
JOANNE CONAGHAN* AND WADE MANSELL*
1 P.S. Atiyah, Accidents, Compensation and the Law (1970).
2 P. Cane, Atiyah’s Accidents, Compensation and the Law (1993, 5th ed.).
3See, most notably, T. Ison, The Forensic Lottery (1967); R. Keeton and J. O’Connell, Basic
Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (1965); D.W.
Elliot and H. Street, Road Accidents (1968). See, also, the Report of the Royal Commission
of Injury on Compensation for Personal Injuries in New Zealand (1967), chaired by Mr Justice
Woodhouse, presaging the introduction of the New Zealand Accident Compensation Scheme
in 1972. A similar report, in which Woodhouse (along with Atiyah) was also involved was
prepared and published in Australia in 1974 but was never acted upon, Compensation and
Rehabilitation in Australia, Report of the National Committee of Inquiry (1974).
Review Article
To continue reading
Request your trial