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Published: Fri, 02 Feb 2018
No Fault Scheme For Tort of Negligence
Critically Analyse Arguments for and Against the Introduction of a No-Fault Scheme for the Tort of Negligence
This paper will review the current system for civil liability in the tort of negligence. The analysis will evaluate arguments for and against the introduction of a no-fault scheme with a focused discussion on the role of fault as a requirement of liability in context of alternative arguments supporting the introduction of a no-fault scheme.
The characterisation of a no-fault scheme is rooted in the principle of distributive justice, compensating victims without having to establish causation and fault. Conversely, current liability for negligence involves fault considerations based on legal theoretical concepts determined through judicial precedent, which are inherently limited within the confines of the established legal principles of duty of care, proximity and negligence.
This in itself creates a tension as wider concepts of “fault” are not currently covered under the law of negligence. This analysis will involve a detailed evaluation of the fault based system with a consideration of whether the tort of negligence itself needs to be updated in some form of legislative framework specific to certain areas of the law, where the application of fault has been particularly problematic, for example in medical negligence.
Furthermore, I shall undertake a comparative analysis to evaluate whether the introduction of a no-fault scheme is in itself sufficient to address concerns with fault based liability in negligence.
Alternatively, I will consider whether it is possible to combine the advantages of both regimes and create a third legal system, “a public liability tort” which is based on the premise that there is a social responsibility to compensate all victims regardless of establishing fault, but also to hold those who have committed a wrong to accountability within an enforceable legal framework, thereby preserving theoretical concepts of “corrective justice”.
A) OVERVIEW OF FAULT BASED LIABILITY AND THEORETICAL JUSTIFICATION
In reviewing the tort of negligence, it is important at the outset to consider the theoretical justification for fault based liability in tort. Indeed, Hassan El Menyawi propounds that such an evaluation is essential to a meaningful comparison of the arguments for and against a no fault scheme in the tort of negligence: “On a formalist account, a theory of justification stands for the idea that law is not merely a huge collection of separate and disparate norms, but a cohesive social arrangement, which is describable in the form of one or more several moral values……. We adopt this methodology and account for tort law by exploring a variety of distinct justifications”.
This concept of “moral values” underpins the current fault based liability for negligence in the framework of a system of “corrective justice”. The fundamental difference between the corrective system and the no fault system of distributive justice relates to the legal approach to the structure of interactions. For example, corrective justice centres on the “transaction” between two parties, whereas distributive justice is rooted in a distribution whereby compensation is awarded to members of a group. For example, Weinreb comments that:
“To take a modern example, the legal regime of personal injuries can be organised either correctively or distributively. Correctively, my striking you is a tort committed by me against you, and my payment to you of damages will restore the equality disturbed by my wrong. Distributively, the same incident activates a compensation scheme that shifts resources among members of a pool of contributors and recipients in accordance with the distributive criterion”. Theoretically the corrective justice system centres on “correcting the wrongdoer’s wrongful act” and to this end, the tort of negligence has developed a legal notion of fault for the purpose of establishing liability. However, some argue that the current scheme contradicts the theoretical purpose of corrective justice due to fault based liability being limited to the confines of a rigid test of duty of care, proximity and foreseeability. The concept of fault or blameworthiness is intrinsically buried in the definition of “tort” derived from the Latin “tortus”, which means “wrong” under the concept of “wrongdoing”. Despite moral concepts of fault and “wrong”, the inherent difficulty of policing morality through a legal framework is highlighted through the inconsistent judicial approach to fault in the tort of negligence.
B) THE CURRENT SYSTEM AND ACCIDENT COMPENSATION CLAIMS
Perhaps part of the problem is that the tort of negligence is currently implemented by judicial opinion and as such, suffers from the same criticisms that the “whole of the common law is a product of judicial creativity”8, which creates uncertainty. The starting point for approaching the concept of fault in negligence is the landmark case of
Donoghue v Stevenson9, which asserted the general principle that a defendant must be in breach of a duty of care in order for liability to be established. The breach of this “duty of care” was defined as conduct that “a reasonable person would not do10”. Accordingly, the negligence concept of fault is attributed to failure to reasonable precautions to avoid causing harm that is reasonably foreseeable.
However, whether this approach can be equated with blameworthiness in the corrective sense is questionable. For example, in the case of Nettleship v Weston, a learner driver was held liable in negligence for injuries she caused to her instructor by incompetent driving. During the case, it was agreed that there was no doubt that the defendant was driving to the best of her limited abilities, however liability was still established due to satisfying the legal concepts of fault.
Whilst justifications for a corrective justice system are sound in principle, the problem is that the practical approach of the legal concept of fault is far removed from the actual definition of fault and blameworthiness, which begs the question as to whether the current justifications for fault based liability in tort are valid. Indeed Feldthusen asserts that “the symmetry between loss and gain disappears when, as perhaps in a motoring accident, an instant’s inattention makes a person liable for millions of dollars”, which in his view contradicts “the dictates of our moral intuitions”. If we apply this view by analogy to the Nettleship v Weston case, it clearly highlights the limitations of fault based liability, which ignores these distinctions. This creates the undesirable position in law where an individual can face liability for a momentary loss of attention yet the negligence concept of fault fails to address wider concepts of wrongdoing and blameworthiness.
i) Role of Insurance
The issues raised by fault based liability in negligence are particularly highlighted by claims for accident compensation. With regard to accident compensation claims in negligence, the tort liability rules appear to be concerned with loss shifting in imposing responsibility on a defendant for the loss suffered by the claimant. As discussed above, the theoretical basis for this is that the “defendant is some way to blame for that loss”.
However, the growth of insurance as customary practice has introduced the notion of loss distribution, where the question is not who is to blame, but who can most easily bear the loss caused by a particular accident. For example, in the case of Smith v Eric S Bush, Lord Griffith asserted that: “There was once a time when it was considered imprudent to even mention the possible existence of insurance cover in a lawsuit. But those days are long past….. the availability and cost of insurance must be a relevant factor when considering which of the two parties should be required to bear the risk of loss”.Whilst Lord Griffith’s comments are justifiable as a practical approach to the reality of accident compensation claims and as a justification for the introduction of a no-fault scheme; introducing elements of no fault liability through the back door compounds uncertainty in the current application of fault based liability in tort. Hassan El Menyawi further comments that “corrective justice is no longer about correcting the wrongdoer’s wrongful act since many defendants have private insurance”. Again this contradicts the “linchpin of…… corrective justice”.
This is further compounded by the current inconsistency in enforcement of accident compensation claims. For example, in certain cases insurance against a risk may become compulsory for example sections 143-145 of the Road Traffic Act 1988 and the Employer’s Liability (Compulsory Insurance) Act 1969), which deals with accidents at work. Furthermore, the Motor Insurer’s Bureau (MIB) has an agreement in place with the Department of Transport that they will provide additional cover funded by a pool derived from insurance premiums in cases in which an accident is caused by an uninsured or untraced driver.
In the case of Gardner v Moore it was held that the MIB would even be responsible in cases in which a driver intended to cause injury but not, conversely where the accident took place on private property as in such cases the compulsory insurance scheme under the Road Traffic Act 1988 was inapplicable. This anomaly suggests that the enforcement of “fault” in tortious liability for accident claims is selective and limited in considerations of where the loss lies. In turn, this approach arguably demonstrates the inherent limitations of a no fault scheme justified on grounds of insured risks and loss allocation. This is further evidenced by the strange position that although employers are also subject to a compulsory insurance scheme, there is no such equivalent to the MIB agreement, which as the case of Dunbar v A & B Painters Limited demonstrates, is a relevant consideration by
courts when considering compensation claims. Again, the current approach therefore limits the application of fault within judicial interpretation specific to the nature of the claim, which is clearly unacceptable in perpetuating a lack of legal clarity as to the boundaries of its ambit.
ii) Approach to Damages
Where an accident victim can satisfy the complex legal requirements necessary to make a claim in tort, they can recover much more than someone excluded on the English law’s system of “full compensation”. With regard to personal injury claims, this includes actual earnings and damages in respect of pecuniary and non-pecuniary loss. However, the corrective concept of “full compensation” is again questionable in light of the selective application of the principles, coupled with the fact that the number of successful tort claimants is relatively small.
For example, the first hurdle is to establish that the claimant is a victim of an “accident”, which may be the result of the fault of the defendant. It has been argued that a wider concept of the term “accident” may also include congenital disability and disease, where they are man-made, but there are a number of conditions which may occur by accident, but due to the inherent problems of the applicability of “fault” in the legal sense, they may not be attributable to the fault of the defendant. In such cases, “the tort system is likely to fail as a means of accident compensation by allowing a number of claimants to fall through the compensation net”.
The Pearson Report highlighted the other problems of fault based liability as costs, unpredictability of outcome, the unbalanced way in which payments were made and the problem of the use of compensation by the claimant. The Pearson Report further highlighted that the administrative cost of tort compensation was 85 per cent of the total amount paid out in 1977. In contrast, the equivalent cost of compensation under the social security system came to only 11 per cent.
Furthermore, as the outcome of a tort action is dependant on claimant instigated proceedings, the litigant must be in a position financially to bring a claim due to the limited availability of legal aid. Hassan El Menyawi develops this argument further in highlighting the tort of negligence’s inherent inequality between rich and the poor and comments that: “tort liability is patently unfair because rich defendants pay while poor defendants do not, but also because a plaintiff who is injured by a rich defendant has the opportunity to get compensated while a plaintiff who is injured by a poor defendant does not have the same opportunity”. In light of this inequality Hassan El Menyawi argues that “no fault compensation, no the other hand, has the potential of providing a consistent amount of damages for similarly situated cases.
This is achievable because the state attempts to compensate any victim so long as they fulfil eligibility criteria.” The introduction of “no-win, no fee” schemes to address this problem of inequality is limited to personal injury claims and in practice, these arrangements have often resulted in the legal adviser not being remunerated. As such, the preference for legal practitioners has been to negotiate a settlement with the defendant’s insurer often producing compensation on the low side, again negating the purpose of fault in negligence claims.
Furthermore, the rising costs of the tort system are intrinsically associated with the requirement of fault, with significant expense incurred in identifying who is at fault and therefore potentially responsible for the harm suffered by the claimant. Costs are incurred in assessing how much compensation will be paid, with investigations and the preparation of expert reports. This is further exacerbated by the nature of the adversarial system, often resulting in cost duplication of each party calling their own experts.
The current system has also been criticised for being slow in the delivery of compensation and the Civil Justice Review highlighted that the more complicated the case, the greater the delay with the average time from accident to trial in a High Court case being five years. This delay exposes claimants to defendants and their insurers who have “every incentive to throw obstacles in the path of a claimant in the hope that litigation will be suspended”. The Woolf Reforms and the Civil Procedure rules go some length to alleviate this problem however dependant on a pressurised understaffed court system.
Lord Scarman in the case of Lim Poh Choo v Camden & Islington highlighted that “there is really one certainty: the future will prove the award to be either too high or too low”, thereby confirming the unpredictability of the current fault based system. This is perpetuated by the fact that even when the claimant can establish a duty of care, they have the burden of establishing breach, factual causation and that the loss suffered is not too remote. Even if a claimant can prove this, there is a significant risk that the final compensation awarded will significantly be less, which must be offset against the cost of litigation. As a result, claimants are often pressured to settle out of court, having incurred significant cost in instituting proceedings in the first instance.
Conversely, it has been reported that administrative costs incurred by insurance companies in processing smaller claims has sometimes led to an over generous settlement, which highlights the unbalanced way in which compensation is awarded far removed from any notion of corrective justice attributable to the fault of the defendant.
The means of paying damages in the form of a lump sum has also been criticised as requiring the courts to guess what the future might bring at the time of trial, again leading to an inconsistent approach to the notion of compensation for fault based liability. As a result and particularly in relation to traumatic, long term injuries, “the accountancy-driven system of structured settlements has begun to prove popular” as provided for under the Damages Act 1996, which enables periodic payments.
The Courts Act 2003 has amended section 2 of theDamages Act 1996, which effectively compels a claimant to accept a structured settlement imposed by a court provided that the continuity of payment under the order is reasonable secure.
Allowing courts to order a means of compensation other than that asked for by the claimant is undoubtedly controversial and highlights the inherent problem of compensating adequately for blameworthy acts. However, it is arguable that such an approach is necessary to circumvent the arbitrary nature of fault based liability and Lewis argues that the advantage of the periodic payment system is that the focus is on the annual financial needs of the claimant, which has often resulted in higher compensation funded by the defendant’s insurers.
Conversely, in the case of Hodgson v Trapp Lord Bridge criticised the system of structured payments in benefiting a very small percentage of accident victims at the cost of the ordinary taxpayer. Lord Bridge highlighted the unsatisfactory contrast where ordinary taxpayers who themselves may be injured will have subsidised such awards to such a victim, but would be unable to maintain an action for damages themselves due to suffering a nontortious injury.
C – TORT LIABILITY AND MEDICAL NEGLIGENCE
The applicability of “fault based” liability has also been controversial in the context of medical negligence claims. Under the current system, a claimant must “show that a duty of care existed; that the defendant failed to conform to the required standard of care, either by his acts or by his failure to act; that the plaintiff sustained damages; and that the breach of duty was the proximate cause of the damages”.
The initial problem of fault based liability in medical cases is the conflict of establishing “fault” with the medical standard of care propounded in the authoritative case of Bolam, which requires standards of medical treatment to be administered in accordance with a responsible body of medical opinion, even if another body of opinion has a different view.
This conflict is further compounded by the imposition of tort based liability. The current system centres on deterrence and on the premise that unless health care practitioners face potential liability, there are no preventative incentives to avoid an accident and ensure care.
Danzon highlights this through economic principles in highlighting that economic efficiency dictates an incentive for health care providers to ensure the socially optimum level of care, and where the sum of expected costs of accidents and costs of avoiding accidents are minimised.
It is further argued that the role of the courts in medical claims should be to make the socially optimal level of care a legal minimum, and hence if doctor takes care at level “X” or above and accident occurs, then they should not be liable: “Under a perfectly functioning negligence rule there should be no negligence and no claims, since, by definition it is cheaper to prevent injuries that would be deemed negligent than to pay for the resulting damages”.
Whilst such an approach is justifiable in preventing floodgate claims, the concept of a socially optimum level of care above which there is no liability, again highlights the problems of enforcing the concept of fault. The term inherently fails to address the wide range of situations that will attract liability in tort and it is submitted that a detailed consideration is needed of the definition of fault in negligence which is accounts for the variances in the type of claims that fall within the parameters of negligence liability. Similar to the criticisms of the accident compensation claims, the negligence based system in the medical arena has been attacked for the slow process of bringing proceedings compounded by unpredictability of what constitutes negligence.
Further, there appears to be a significant discrepancy between the matching of injuries to claims: “The evidence from 1974 suggests that almost 1 per cent of hospital admissions resulted in a mishap due to negligence, and that only 1 in 25 of these patients was compensated through the tort system”. This is further perpetuated by the costs of litigation effectively resulting in a medical claims lottery, potentially excluding meritorious claims.
The use of a jury based system has also been attacked. Firstly, it is commented that juries will not be equipped with the relevant knowledge and sufficient information to adequately determine what is the socially optimal level of care66. As such, determinations on size of damages particularly for intangible losses such as “pain and suffering” have been inconsistent and arguably inappropriate in certain cases. Juries have also been inconsistent in their approach to whether damages are related to the severity of the injury or the degree of negligence by the health professional again emphasising the problem of fault as a determinant of liability for negligence.
As a result of this inconsistent approach to “fault”, the whole system of corrective justice is undermined by virtue of ad hoc decisions, which heightens uncertainty as to the boundaries of liability for medical negligence. This is highlighted by Danzon, who asserts that “The efficiency of tort as a compulsory insurance system would be increased by replacing individualized awards with scheduled benefits in order the reduce uncertainty”.
Furthermore, the purported “deterrent” objective of tort based liability in preventing negligent health care is questionable in light of claims that physicians have in practice been encouraged to practice “defensive” medicine and go beyond the socially optimal level of precaution to prevent claims. For example, a study by the Hudson Institute of hospitals in Indiana found that defensive medicine and other direct costs of malpractice liability actually raised costs by 5.3%.
A) NO FAULT COMPENSATION SCHEME FOCUS: SOLUTION TO THE TORT LIABILITY SYSTEM?
Proponents of a no fault compensation scheme believe that in contrast to an ineffective and inconsistent tort liability based system, it is practical and more egalitarian.
This view is highlighted by the statement that “no person rationally eschews accident insurance on the ground that she or he already has sufficient protection through the tort system”. As evidenced above, not all damages can be compensated by liability in tort as by its very nature it is restrictive in requiring fulfilment of the criteria of fault and causation. This is compounded by the lack of successful claims and a recent British survey found that only 12 per cent of accident victims are awarded damages for tort. Notwithstanding the consideration given to insurance, some types of accident damage cannot be insured against. The present social security system provides for payment in respect of certain injuries however payments are based more on subsistence than loss suffered by a claimant and as such are significantly lower than what would be awarded in a tort compensation claim.
In the medical context, Danzon estimates the figure at one in twenty five, succeeding in a claim for medical malpractice. In terms of moral justification, some argue that “recovery for personal injury is crucial to the protection of individual bodily security” and that “differentiating victims of personal injury between those who are victims as a result of human-caused fault and those who are not is not consistent with our moral intuitions”.
Dissatisfaction with the tort based liability led to the introduction of no-fault compensation schemes in Sweden, Norway, Finland and New Zealand and do not require proof of any negligence. The New Zealand system replaces the victim’s earnings at 80 per cent of pre-accident earnings, subject to a maximum ceiling. In addition, a lump sum can be awarded in respect of permanent disability, but payments for pain, suffering and loss of amenity are minimal.
The New Zealand scheme is however linked to its economy, which is largely agricultural. Accordingly, it is questionable whether such a system would translate effectively to an industrialised economy where the injuries often occur in the industrial context. Moreover, there still remains the political problem that public schemes have to be paid for out of public funds, which tends to make them less popular with those who have resources to make private claims.
Furthermore, many proponents of fault based liability in tort argue that no-fault schemes undermine corrective justice in depreciating the value of personal accountability. They further argue that “no fault compensation schemes do not send a message not to act in harmful ways”.
For example, In the USA in relation to negligent driving about 30% of states now operate a no-fault system of motor insurance. In a no-fault system of motor insurance a motorist has to complain against his own insurers if suffer damage and cannot sue a motorist. Since insurance is compulsory for driving, this would support the argument that it doesn’t matter where the money comes from. However, this obvious advantage provides no financial incentive to drive carefully as any claim will be met by each driver’s own insurers. Economist Michael Trebilcock’s statistical research also demonstrates that implementing no fault compensation schemes does have a correlation with an increase in physical injuries and fatalities. In fact Colorado recently switched back to a fault based system of motor insurance after twelve years of no-fault policies.
Conversely, it is also arguable that in a fault based system, the level of insurance is not related to personal qualities as insurance premiums are often influenced by other factors such as age, profession, employment and location. In fact, in any system we effectively all pay for incompetence.
In the medical context, Danzon observes the fundamental difference of Sweden, Norway, Finland and New Zealand’s no fault compensation schemes with no requirement for proof of medical negligence and the imposition of strict liability. It is highlighted that the Swedish model “eliminates all reference or enquiry into fault, requires no proof of negligence by an individual provider, and entails neither financial nor reputational consequences for the provider”.
Under such no-fault schemes, “normal risks” of medical practices and pre-existing injuries are excluded. Severity of injury is relevant only to the size of compensation with structured periodic payments. Deterrence measures are then directed at institutions rather than individuals and distinct from the compensation claim, which expedites the processing of a claim.
Supporters of this approach argue that the mismatch between injuries and claims would be reduced, “Because, a) coverage extends to medical injuries caused by medical acts or omissions that are not demonstrably negligence, and b) the cost of bringing a claim in time, dollars and adversarial tension is reduced.”
Furthermore the lack of litigation reduces overhead costs, ensures a quicker procedure and more funds for distribution due to reduction of administration costs. In context of medical claims, it is argued that no-fault compensation schemes in fact operate as superior deterrence measures on the basis that as more claims are processed, a greater body of knowledge becomes available in relation to the cause of accidents, which can be utilised to implement effective preventative measures, which is preferable to the risk of defensive medicine. Conversely, the potential problems of such a scheme is that due to the higher number of cases being processed, the scheme could become a “victim of its own success” as the higher case load may in fact result in higher administration fees. Furthermore, although such a scheme would address the current haphazard system of determining fault and negligence, it may be equally difficult to distinguish between “free-riders” and genuine complaints and as “long as a line is to be drawn between compensable and noncompensable cases, litigation over borderline cases will remain”.
Other criticisms of a no-fault scheme highlight the inability to claim for pain and suffering as a weakness and that “justice” is not served due to the lack of investigation into claims. Outside the medical context, Professor Fleming argues that “punishment is justified on a moral basis and …….rests primarily on the idea of retribution,” which is not the purpose of no-fault compensation schemes.
B) OBSERVATIONS AND RECOMMENDATIONS
i) Preliminary Discussion
The above analysis demonstrates that there are clearly advantages and disadvantages of both regimes. The major benefit of tort is the deterrence factor and the underlying moral justification of corrective justice enforceable within a legal framework. However, it is questionable how far the current law of tort has acted as a deterrent and delivered corrective justice in reality. It is submitted that the underlying problem is the inherent difficulty in establishing “fault” within the narrow confines of the negligence test of duty, proximity and foreseeability.
Despite the literal meaning of the word tort, the tort of negligence does not appear to be adequately addressing the issue of fault. In practice, the traditional concepts of negligence have been manipulated to focus on apportioning losses between parties to litigation, particularly with accident compensation claims. Whilst reasoning for such an approach clearly reflects the reality of insurance in motor injury claims, it only serves to heighten legal ambiguity from a claimant’s perspective and is effectively introducing no-fault concepts into tort through the back door.
Furthermore, as fault does not appear to be equated with blameworthiness in the wider sense, it begs the question as to what purpose it actually serves. This is further evidenced by the problem in determining what constitutes negligence and malpractice in medical negligence claims. Some sources indicate that 80% of public medical funding goes towards funding medical negligence claims and funding legal expenses, which would undoubtedly by spent better elsewhere within the health service. Accordingly, it is submitted that a detailed review is also needed of the current requirements of fault, duty of care, breach and causation to update the tort of negligence.
Alternatively, proponents of no fault compensation schemes argue that essential benefits are the equality of access to justice in distribution, along with quicker processing of claims by virtue of reduced overheads. Additionally, there is less risk of mismatch of injuries to the level of compensation, with structured payments addressing the actual needs of the claimant.
However, this system is not without its limitations. The funds available are dependant on public contribution and schemes available will inherently be limited and shaped by public opinion and policy. In any event, there is always a risk of limited funds to account for all potential claims. Additionally, no fault compensation schemes also risk floodgate claims perpetuated by the fact that there is no requirement to prove loss.
It is also submitted that perhaps it is unrealistic to ever have tort liability without fault. Even under a no-fault compensation scheme, surely a claimant would still have to show that the defendant had some obligation to him and that his behaviour in respect of that obligation caused the defendant to suffer loss or injury? If not, then it has been argued that it may then be difficult to distinguish these types of actions with other torts due to lack of fault. The di
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