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Editorial: Abolition of Personal Injuries Law – Aidan Ellis, Temple Garden Chambers

30/11/17. Earlier this month, Lord Sumption delivered a provocative lecture to the Personal Injuries Bar Association entitled “Abolishing Personal Injuries Law: A Project”. Taking inspiration from Atiyah’s Accidents, Compensation and the Law, he argued that our fault-based system leads to anomalous results and is inefficient in its attempt to allocate resources to those who need or deserve it.

It is difficult to deny the merit in some of these arguments. If I were to design an ideal system, starting from scratch with no reference to legal history, I doubt I would come up with anything like the current fault-based system. I might start from the economic premise that the financial losses suffered by those who are seriously injured are so great that they cannot simply be absorbed by that individual. There needs to be a mechanism to spread the cost across society. With very little imagination, solutions might be suggested in the form of compulsory insurance or a state compensation scheme. But our fault-based system is ill-equipped to carry out that re-allocation of resources. There is no correlation between those claimants able to prove fault (which focuses on the defendant’s conduct) and those claimants who really need the law’s assistance. The highly technical nature of some liability disputes, for instance the statutory defence available to highways authorities, only illustrates how a fault-based system diverts attention away from the Claimant’s needs.

Lord Sumption explained that regions that have moved away from fault-based liability have tended to be motivated by economic concerns such as dramatically increased insurance premiums. Interestingly, Lord Sumption linked increased insurance premiums not only to the increasing number of dishonest claims but also to the increasing number of genuine claims (largely driven by increased numbers of road traffic accidents). Additionally, more people seem inclined to make claims, though whether that is an unhealthy sign of compensation culture or a healthy sign that more people are aware of their rights depends on your perspective. If premiums continue to rise, we may yet reach a tipping point, particularly once the burden of compensation claims on the NHS is taken into consideration.

But I doubt that we should be preparing for the end of personal injuries law. Culturally, our notion of compensation for personal injury is not wholly based on an ideal economic model to redistribute resources to those who need them. The law of negligence grew out of the law of trespass to the person. Its origins are in principles of personal autonomy and the idea that if someone trespasses against you, they should pay for it in damages. Those principles are sufficiently entrenched that it is difficult to imagine a dramatic paradigm shift towards compulsory insurance. Further, at least to some extent, the right to bodily integrity is a protected component of the right to privacy contained in article 8 of the European Convention on Human Rights, making it even harder to abolish personal injury law.

As a result, it may be that Lord Sumption’s title was correct to describe the abolition of personal injury law as a “project” rather than something that is likely to happen imminently. That does not mean that we should anticipate the status quo continuing indefinitely. Concern about increased insurance premiums and the liability of public bodies is not going to go away. There remains scope for other reforms which stop short of abolition. Such reforms could include greater use of tariffs for general damages; the expansion of fixed costs into the multi-track and limiting the scope for claims involving minor injuries. Whilst reforms of this nature would not abolish personal injuries law, they would have a substantial effect on practitioners and on injured claimants. Not for the first time, personal injury lawyers would be justified in looking to the future with a measure of trepidation.

Aidan Ellis
Temple Garden Chambers

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