THE PEARSON REPORT: ITS “STRATEGY”
| Author | John G. Fleming |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01533.x |
| Date | 01 May 1979 |
| Published date | 01 May 1979 |
THE
MODERN
LAW
REVIEW
Volume
42
May
1979
No.
3
THE
PEARSON REPORT:
ITS
“
STRATEGY
”
NOT
since the Beveridge Report has
so
earnest and elaborate an
inquest into the British system of social responsibility for the victims
of accident been undertaken as by the Pearson Commission. Its
Report, released in March
1978,’
culminated a Ave-year inquiry, un-
matched certainly in duration and perhaps in complexity by parallel
undertakings in other countries such as New Zealand and
Austra1ia.l It demands respect and serious attention not only
in
Great Britain to which it is of course directly addressed, but from
all persons concerned with the problems of social security in its
widest range.
Its claim to such widespread attention is based not only on the
“
high emprise
”
of
the Commission itself, but
on
the critical role
played by Great Britain as a social-democratic model for the latter
twentieth century. Since the Second World War, Britain’s economic
transformation into
a
“
mixed
”
economy has been paralleled by a
steadily increasing role
of
social security compared with the tort
system as a source
of
protection and compensation against injury.
Both developments reflect a substantial shift from the private to
the public sector. Not that Britain stands by any means alone in
this historical progression; indeed countries like Sweden and New
Zealand have considerably better credentials for social engineering
in these respects. But the fact remains that in size and prestige
Britain
is
unmatched among those travelling the same road. The
Pearson Report
is
therefore important not only for its appraisal
of
the status quo in Britain but also for what inspiration it can offer
for the future
of
all similarly oriented societies.
THE
CONTEMPORARY
TWO-TRACK
SYSTEM
The
Commission rightly saw its principal task in redefining the
relation between social security and tort liability.
It
is as well to
remember that both
of
these are relative newcomers and became
1
Cmnd. 7054,
1-111.
Unless otherwise indicated, references are to
Vol.
I
of
the
Report
(“
Report
”),
Vol.
I1
is
entitled
“
Statistics and
Castings,"
Vol.
111
“
Over-
seas Systems of Compensation.”
a
See Report,
Vol.
111,
Chap.
10.
See Report,
Vol.
111,
Chap. 9.
To
borrow
a
famous phrase from Benjamin Cardozo
:
“
The Game
of
the Law
and its Prizes
”
(Se/ected
Writings
(1947,
p.
421).
249
VOL 42
(3)
1
250
THE
MODERN
LAW
REVIEW
[Vol.
42
(uncomfortable) bedfellows only within very recent memory. The
beginnings of modern social security barely stretch beyond our own
century, the first important milestone being Bismarck’s introduction
of workmen’s compensation in
1884,
only hesitantly and gradually
emulated by Britain and other Western countries over the next
30
or more years. Germany remained well ahead in pioneering effective
pension and public health schemes, long before the Beveridge Plan
launched an equable and comprehensive system of social security
in Britain after the Second World War. That system has been refined
in detail, principally by moving increasingly from flat to earnings-
related benefits, but has otherwise remained intact and, in the
Commission’s view, basically sound during the 30-odd years of its
0peration.O
The tort system in its function of
accidenf
compensation is in a
practical sense not
so
very much older. For not until around the
beginning of the nineteenth century do accident cases in any
appreciable numbers appear in the reports, mostly concerned with
road collisions in evidence of greatly increased traffic along turn-
pikes and city streets. Later yet their number was swelled by claims
arising out of industrial accidents. Both posed serious problems for
the law of torts whose main preoccupation had hitherto been
occasional assaults, defamation, boundary disputes, noxious neigh-
bours, trespassing cattle and the like. Because Parliament was other-
wise preoccupied, it fell to the courts
to
deal with the challenges
of the new industrial society. By and large, their response was to try
and contain the flood by raising the barriers to recovery: claims
for industrial accidents were largely eliminated by devising the
infamous trinity of defences--common employment, contributory
negligence and voluntary assumption of risk. For trafflc accidents
the strict liability of the older common law of trespass was replaced
by negligence diluted by the defences of contributory and imputed
negligence. Besides these changes in the
“
black-letter
’’
rules, the
effectiveness of the law of torts
as
a
source of compensation was
further reduced by the lack of claim-consciousness among most
victims and, in the absence of liability insurance, by the financial
incapacity
of
many potential defendants.
This scene has changed only gradually over the twentieth century.
The law of torts continued to play an insignificant role in industrial
accidents until the three defences disappeared after the Second
World War. Nowadays, however, we are told,
47
per cent. of all
tort claims relate to work injuries and illnesses; even
so,
only
€70
million are recovered through the tort system compared with
€250
million from the industrial injury scheme.’ The legal situation with
respect to the other important field of accidents-road accidents
which account for
41
per cent.
of
all tort claimants 8-also under-
J
Report, Chap.
5.
6
Report,
8261.
7
Report,
$112.
8
Report,
819.
To continue reading
Request your trial