Critically analyse arguments for and against the introduction of a no-fault scheme for the tort of negligence
- Overview of fault based liability and theoretical justification.
- Current system and accident compensation claims.
- Role of insurance.
- Approach to damages.
- Tort liability and medical negligence.
- No fault compensation scheme focus: Solution to tort liability system.
- Observations and recommendations
- Preliminary discussion.
- Public liability tort .
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.
[...] 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. OBSERVATIONS AND RECOMMENDATIONS Preliminary Discussion The above analysis demonstrates that there are clearly advantages and disadvantages of both regimes. [...]
[...] If this approach is to be adopted, an initial recommendation would be a detailed official review of the current legal framework for negligence with effective communication and consultation with relevant bodies such as the medical profession in addressing the realities of malpractice cases for example. Only when a detailed and effective review of the current tort of negligence is undertaken at an official level can deficiencies in the current system as well as a considered approach to implementing a workable no fault scheme be addressed in any meaningful way to reconcile the balance between corrective and distributive justice going forward. [...]
[...]  op.cit. Atiyah's Accidents, Compensation and the Law. 7th Edition, Cambridge University Press (2006). Ibid. Atiyah (2006), op.cit.  2 WLR 790 Ibid. Menyawi (2002), op.cit. Feldthusen, supra note 15 at 413. See ?Compensation of Victims of Untraced Drivers? 7th February 2003 between the Secretary of State for Transport and Motor Insurers' Bureau and Uninsured Drivers Agreement February 2006.  AC 548 See also Charlton v Fisher  3 WLR 1435 1986] 2 Lloyd's Rep 38 Atiyah (2006). Op. cit. [...]