Could there be a better model for compensation to victims of injury?

Tort based system

In the UK's jurisdiction, work accident claims are dealt with under the judge made area of tort law. The law of negligence is broad and amorphous and generally covers relationships where one party (typically an employer) owes a duty of care to another; they breach their duty of care, and the breach of duty causes the claimant's injury. 

In practice, this tort based system manifests itself in a private (first or third party) insurance based system and is said to have several more theoretical functions. One such function is to deter employers from engaging in or appeasing over wrongful, dangerous and reckless behaviour. Another view is that its purpose is that of corrective justice; compensating the claimaint. The adequacy of the current system arguably depends upon the attainment of any such objectives.

As a force for deterring wrongful and dangerous behaviour, the system is arguably inadequate. To a large number of employers, the costs of implementing a fully secure working environment are likely to be outweighed by the benefits of operating in less optimal conditions and occassionally having to claim on their insurance. Furthermore, the Health and Safety Executive (HSE) who is the national independent regulator for work related illneses and health and safety, has a relatively low track record  for prosecuting instances of health and safety violations. This has two implications. Firstly it suggests that the focus of the current system is in fact rooted in compensation as opposed to deterrence. Secondly it confirms the almost exclusively private nature of the system. Instead of fostering a culture of harsh, active enforcement and punishment, the maintanance of safe systems of work largely depends upon individual lititgants to bring their claims and take on unwieldy insurers in an inconsistent and inefficient fashion.

Is there a better way?

If compensation is the main aim of a system of tort law, could we achieve this ends in a more economic way than the current adversarial punch up between claimants and insurers through alternatively focusing solely on a solution for the victim?

One  answer may be to introduce a no fault compensation system. Such a system would depend upon employer contributions- most probably to an insurance scheme of some sort and would demand a significantly less stringent evidential burden for victims than that at present. Despite the rosy exterior there are however are several problems with such a scheme.

• Ironically compensation schemes focused solely on the claimant will rarely produce adequate damages for the individual concerned. The experiences of a non-fault based system for indusatrial accidents in Belgium  has shown that the amounts paid out are lower than they would be in tort law.
  
• Secondly, a scheme which compensates for physical injury only is superficial and blinkered. One reason why cases can take longer than expected under our current system is that the courts recognise that an individual's condition may deteriorate or require further attendance, and thereby generate unforseen costs. Unlike a compensation scheme which is deceptively swift, the tort based adversarial system we currently have enables the individual requirements of each case to be met through awarding appropriate long term, non-peciuniary and sometimes economic losses to an individual.
  
• A major ethical dillemma with a compensation scheme is that in taking the fault element out of the ultimate injury, the law fails to treat equal cases alike. For instance, someone who suffers an injury in a workplace accident may be awarded compensation merely on the basis that it happened to them whilst at work. Conversely, an individual who was born with the same injury will not receive any compensation for the ultimate disadvantage he will endure.

Compensation is undoubtedly a significant, if not the main focus of the current system of tort law. As a society we value money, and although one cannot put a value on an individual's health, the receipt of an equitable amount enables one to maitain the standard of living they were previously accustomed to.  The law ultimately serves to protect our expectations; expectations that our physical and propritetary integrity will not be unduly interfered with, and if so, that same expectation demands some  compensatory justice. Since many would also advocate that the purpose of the law is for the protection of others, the aims of tort law must also seek to advocate a preventative approach, something the current law needs to further chip at.

Becky Carr

Notes

1. For example, despite the fact that there were 555,000 new cases of work related ill health and over 44,000 slips trips and falls, resulting in 152 reported fatalities, only 1090 prosecutions were brought by the HSE against employers in 2008/2009. See HSE Health and safety executive annual report.
2. See N J Philipsen 'Compensation for industrial accidents and incentives for prevention: a theoretical and empirical perspective' European journal of law and ethics 2009.