!!Экзамен зачет 2023 год / tortcom

A2 Law

General Comments on the Law of Tort

1. Tort and Accident Victims

A very high proportion of actions in tort involve accident victims. In 1978, the

Report of the Royal Commission on Civil Liability and Compensation (the

Pearson Report) found that only 6.5% of accident victims recovered any compensation by suing in tort, and considering that over 3 million deaths and injuries were caused by accidents every year, the tort system seemed inadequate. These figures will probably become even more worrying because of reforms to the legal aid scheme.

2. Tort and Policy Considerations

Public policy considerations (i.e. judges taking political or non legal factors into account) occur throughout the law of tort. Judges are aware that their decisions can have important consequences, e.g.

•Claims are often against insurance companies. If they are found liable too often, they will raise premiums or even refuse to insure at all.

•The floodgates argument, e.g. Monroe v London Fire.

•The need to allow public authorities e.g. police, ambulance services etc to feel free to take risks for the benefit of society as a whole.

•The availability of remedies other than the law of tort, e.g. W v Essex CC.

•Those matters where Parliament should intervene through legislation, e.g.

Cambridge Water.

3.Arguments in favour of a requirement of Fault

(a)It limits the number of tort actions that can be brought, thus preventing the courts from becoming overworked.

(b)It encourages people to be careful, e.g. newspaper editors must always be aware of the tort of defamation.

(c)It is a way of making people pay or be accountable, for what they have done wrong.

4.Arguments against a requirement of Fault

(a)It can result in injustice in that people who have suffered harm have no means of compensation, e.g. Thalidomide victims.

(b)Failure to prove fault does not necessarily mean that fault did not occur.

(c)It is doubtful whether the law of tort is an effective deterrent against carelessness. Firstly because many are unaware that there is a law of tort. Secondly, because in many spheres of activity people are insured.

Thirdly, powerful corporations would not be deterred (even by strict liability) if potential profits were high.

(d)Sometimes a very minor level of fault by the defendant can result in huge damages, e.g. a minor lapse in concentration by a driver.

(e)The need to prove fault increases the length and cost of cases.

(f)It adds to the unpredictability of the outcome of cases.

(g)Many of the activities which cause injury – e.g. industry, medicine and transport – carry risks, but benefit society as a whole. It can be argued that when harm results from such an activity, society should bear the cost.

5.Alternative Compensation for Accident Victims

(a)The Social Security System

Accident victims are entitled to certain state benefits, e.g. unemployment benefits, the industrial injuries scheme. The Pearson Commission found that in one year, £421 million was received by accident victims from the social security systems, as opposed to £202 million through tort compensation.

(b) Insurance

A whole range of policies exist to cover potentially dangerous situations. In two instances it is actually illegal not to have insurance cover (vehicle users and employers have to be insured). Many people take out household insurance which often covers claims under Occupiers liability. Also many people have policies to cover accidental death or injury, often provided by employers and trade unions.

(c) The Criminal Injuries Compensation Board

This fund compensates victims of violent crime and those injured in trying to prevent crime.

(d) Special Funds

Special funds are often set up to compensate the victims of high profile disasters, e.g. Hillsborough.

6.No Fault Systems Abroad

(a)New Zealand

In New Zealand in 1972, tort actions for personal injury were abolished and victims were paid from a fund to which all employers, vehicle owners, health care providers and other taxpayers contributed, without having to prove fault. But this eventually proved unpopular especially by those who contributed and it has now been abandoned.

(b) USA

In the USA about half of the individual states have a no-fault scheme for victims of road accidents.

7. Reform of the Tort System

The Pearson Report Proposals (See Elliott & Quinn)