REFORMING LAW OF DELICT

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How does our system of delict operate in relation to the underprivileged sections of our community? Is it possible for injured persons with limited financial resources to obtain quick and adequate compensation for their injuries through the present delict system?

 

Most delictual actions are brought under Aquilian action and most Aquilian actions are based on allegations of negligent, rather than of intentional wrongdoing. It is appropriate therefore to explore how a system of civil liability based upon proof of negligence operates in Zimbabwe.

Social context

To put this debate into a social context there are two main approaches to accident compensation, namely, the individual responsibility theory and the social responsibility theory.

Individual responsibility

Under a fault system of civil liability, what is stressed is the factor of individual responsibility. If one person has been harmed by another, the person causing the harm is held liable to pay compensation, provided that the author of the harm was negligent in its infliction. Under this approach, it is considered as being both unfair and unjustified to impose delictual responsibility unless there was fault. In this regard, much stress is laid upon the deterrent function of civil liability. If harm, it is argued, is caused accidentally without fault, the loss should lie where it falls as deterrence is in no way served by punishing a doer who has taken all reasonable care. On the other hand, if D is careless he should be penalised by being made to pay damages, not only to compensate the injured party, but also to encourage him and others to exercise due care in the future. In capitalist societies, another often unstated reason for shying away from strict liability is that such a liability system will serve to discourage private enterprise initiative by placing an intolerable economic burden upon the entrepreneur. As Fleming points out in his book An Introduction to the Law of Torts 2nd ed at pp 6-8, these justifications for the fault system have been drastically affected by two important contemporary phenomena.

 

First, major inroads are made into the idea of individual responsibility by insurance. By the device of insurance, it became possible to shelter the individual tortfeasor from the economic consequences of an adverse claim by spreading the cost among the public in the form of premium payers. Delictual liability thus became more or less painless for the individual tortfeasor.

 

By approving insurance schemes, the law impliedly abandoned the principle of individual responsibility. This is justified, however, on the basis that insurance achieved the dual benefits of safeguarding D from the potentially ruinous consequences of an adverse judgment and assuring his victims of actual compensation instead of merely achieving an empty verdict against a defendant who might well be financially impoverished. According to Fleming, the law of delict has thus lost its role as a champion of individual responsibility and of playing a major role in accident deterrence.

 

Second, with enterprises causing delictual harm, these enterprises can frequently absorb as overheads the costs of delictual damage liability in a similar fashion to other production expenses by passing on the cost of these to their customers (loss distribution). (Where there are stringent price controls, however, loss distribution may not be possible.)

 

Fleming op cit., p 10 deals with the effects of these phenomena on the fault theory as follows:

 

As long as delictual liability was seen to involve just a shifting of loss from one individual to another, the desire to compensate the victim was not enough to justify impoverishing the injurer. But now the equation has shifted: if the victim can be assured of compensation without involving a corresponding loss to the injurer, the focus of individual responsibility and fault tends to blur. It becomes more economically allocated: in short, the philosophical criterion is yielding to the economic; we are involving the utilitarian calculus of balancing benefit and cost.

 

In other words, where losses are distributed by insurance from the negligent driver, owner or employer to an insurance company, the fault criterion loses much of its value and the quest should be to design a scheme whereby the maximum benefits can be obtained for the injured party at the minimum possible costs.

Social responsibility

The social responsibility theory, on the other hand, lays the emphasis upon the responsibility of society to look after victims, whether or not the injuries are caused by negligent action, and rejects the idea that the entitlement to compensation should depend entirely upon whether P is able to prove in a court of law that a defendant negligently caused him harm.

 

Finally, looking at these two approaches in the political context, Atiyah in his important book Accidents, Compensation and the Law 3 ed at p 11 has this to say:

 

The distinction between an individualistic political philosophy and a more socialist philosophy affects the choice of compensation systems over and over again. Those who believe in “community care” recognise a moral obligation on society as a whole to care for those unable to care adequately for themselves; to search out those in need of such care; to offer them the help and care, partly at least in the form of help and welfare in kind. On the other hand, the more rugged individualism of the nineteenth century which still has its devotees today would insist more strongly on the personal responsibility of those who cause accidents and less on society’s responsibility for catering for these victims; it encourages the belief that those who need “help” can be left to obtain it themselves, so long at least as the State supplies the coercive framework within which those “responsible” for accidents can be made to answer for those misdeeds; and that this help is best given in the form of cash payments which the recipient is entitled to spend as he pleases.

 

Operational defects of fault system

In recent years, the fault system of compensation has come under increasing attack in developed countries and a number of countries have introduced or are considering the introduction of a variety of non-fault schemes, either State-run or operated through private insurance. The most comprehensive of State-operated systems is that which was first introduced in New Zealand in 1974.

 

In developed countries, the major shortcomings of the fault system which have led to these moves to replace it are:

 

The system is inordinately expensive to administer and in terms of the cost/benefit ratio it is highly inefficient. Prosser and Keeton on Torts 5 Ed at pp 598-599 draw attention to the fact that:

 

As regards these costs one survey in England disclosed that with road accident compensation which is based on proof of fault it cost 74p to distribute £1 whereas under the industrial accident compensation system which is a no-fault system it only cost 15p to distribute £1. So too the excessive distributional costs of a fault system were clearly illustrated by the Pearson Commission in England where in their 1978 report estimated that under the tort system the cost of operation was about 85% of the value of the compensation paid (i.e. it cost about £171m to transfer £202m) whereas under the social security system the cost of operation was only about 11% of the value of the compensation paid (i.e. it cost about £46m to transfer £421m).

 

The system of liability based on fault has been referred to as a lottery because in many cases the inherent vagueness of the negligence concept makes the outcome in delict cases unpredictable. The concept of fault is especially nebulous, inaccurate and difficult to prove in motor collision cases. In more general terms, Atiyah makes a quite devastating critique of the application of the negligence criterion in his book Accidents, Compensation and the Law. Prosser and Keeton op cit p 599 sum up the criticisms of the fault system as follows:

 

The whole picture is one of a fumbling and uncertain process of awarding a judgment upon the basis of unreliable evidence, fraught with ruinous delay, which fails entirely when proof of fault fails, leaves the entire remedy worthless against many defendants who are not financially responsible and diverts a large share of the money to attorney fees even when it can be collected.

 

The bringing of a negligence case to court is a laborious process and the proof of negligence in court may be a protracted process. This means that there are often exceedingly long delays between an accident and the final securing of compensation and this can cause great hardship in cases where compensation is immediately needed.

 

In one British survey, it was established that delays of over two years in motor accident cases were not uncommon and that, of the 42% of accident victims who managed to obtain any compensation at all (i.e. 58% of the victims were uncompensated), only 13% were paid out in less than a year, 20% were paid out in the second year, 6% in the third year and 3% in the fourth.

 

It is clear that the defects in the fault system that have been identified as applying in developed countries aresubstantially magnified in underdeveloped countries. This applies to Zimbabwe.

Particular shortcomings of fault system for underprivileged people

Our system of fault liability often results in gross injustice to financially underprivileged plaintiffs and the only persons who can adequately exploit the fault system to their advantage are the wealthy. Some of the particularly harsh effects for the financially impoverished claimant in Zimbabwe can be identified.

 

First, there is the widespread incidence of what might be termed legal illiteracy. People are often unaware that they are entitled to claim compensation or, if they do know, they will not know how to pursue their claims and what they must establish before compensation will be paid.

 

Second, under a fault system poor claimants start from a decidedly weak bargaining position. The practical effect of this weak economic position may often be that such claimants may either receive no compensation or they may be substantially under-compensated for their injuries. If a claimant lacks the financial resources to pursue his claim in court, he may effectively be left remediless as, even in a clear cut case of fault, D can simply deny negligence knowing that P is unable to take the matter to court. Civil legal aid in this country is extremely limited in its scope and only a handful of potential claimants who are too poor to be able to go to court without assistance are enabled to pursue claims under the in forma pauperis system. When the claimant has barely adequate means to initiate a court case, he may frequently fear to commit those meagre financial resources to the uncertain chance of succeeding in a delict claim. Not only does the inherent vagueness of the negligence criterion make people reticent about going to court but also if a wealthy D or an insurance company is opposing, P will be aware that the other side will be able to mobilise far superior resources both to gather evidence favourable to its case and to employ very skilful lawyers to argue its case.

 

The claimant’s inferior bargaining position often means that he will be forced to accept a totally inadequate out of court settlement and thus the financially well endowed defendant may artificially be able to minimise the level of compensation even in the most clear cut cases of negligence. (Of course, in some cases insurance companies readily accept liability and pay adequate settlements.)

 

Third, even where limited financial resources or legal aid assistance allowed the injured party to pursue his claim to a successful conclusion, the time lapse between the injury being sustained and compensation being paid will almost invariably have been extremely long and the impoverished injured party will have to survive without desperately needed compensation over this period. This naturally results in extreme hardship to the injured party and his family.

Need for reform

These major problems with the fault system strongly indicate that the time has come to find alternatives or, at least, to effect major reforms to the present system in this country. Consistent with a socialist direction, it would seem that the State should assume a greater obligation towards the care and rehabilitation of all accident victims.

 

The Government did introduce free medical treatment for people earning less than the specified amount and has periodically increased no-fault liability benefits under the Accident Prevention and Workers’ Compensation Scheme in terms of the National Social Security Authority Act. That Act also provides a framework for establishing a comprehensive social security scheme that includes pensions and unemployment benefits.

Possible reform measures

Government no-fault scheme

In respect of accidents outside the workplace, consideration should be given to the setting up of a no-fault liability system to cover these. A vital question would be whether sufficient financial resources could be procured to allow the setting up of a Government run no-fault system covering all accident victims not presently covered. Such a scheme would result in savings as, by abolishing fault as a criterion for compensation, large-scale savings would be effected by not having to run expensive civil courts dealing with delict claims. On the other hand, the structures for administering a no-fault system would have to be established and this would involve considerable expense.

Private no-fault scheme

On a less drastic basis, the Government feels that although it could not raise the necessary finance to institute a State run no-fault scheme, a private no-fault liability scheme within the field of motor accidents could be considered. This would necessitate the involvement of private insurance companies which would administer the scheme. Given the relatively small motoring population in this country, the question would be whether such a system would be economically viable? To determine this, a proper costing exercise would have to be carried out. However, even if such a system operated with a very low financial ceiling for compensation, this would be an improvement on the present position where a large proportion of accident victims remain totally uncompensated. Drivers would be compelled to take out no-fault liability insurance.

 

Any no-fault scheme which extends beyond the field of motor accidents into accidents of other types, such as accidents in the home and in fields of employment not covered by worker’s compensation, could probably not be organised through private insurance, but would have to be operated by the State. What has been apparent in other countries is that lawyers and insurance companies make a good living out of the fault system and are very resistant towards proposals to abolish it.

Strict liability

In regard to another large source of accident cases, namely, harm caused by defects in products, careful consideration should be given to making enterprises strictly liable for the products which they produce. There are cogent arguments in favour of adopting the approach that the profit-making enterprise should be made to pay compensation to those who suffer injuries as a result of defects in the products. After all, the enterprise is in a financial position to take out insurance cover or to pass on losses to the general public.

Harm caused by criminals

In the field of injuries resulting from the commission of crimes, it has been argued that far too much emphasis is presently placed upon punishment of the offender and far too little upon compensation of the injured person. Instead of sending so many people to prison, part of the non-custodial penalty should be to compensate their victims. See the present provisions contained in Part XIX of the Criminal Procedure and Evidence Act [Chapter 9:07].

Establishment of a Road Accident Fund

This could be along the lines of the Road Accident Fund in South Africa. This creates a compensation scheme for victims of motor accidents and their dependants. It provides a social security safety net for persons injured in motor accidents. It provides compulsory cover to all users of South African roads, citizens and foreigners, against injuries sustained or death arising from accidents involving motor vehicles within the borders of South Africa.This cover is in the form of indemnity insurance to persons who cause the accident, as well as personal injury and death insurance to victims of motor vehicle accidents and their families. It rehabilitates and compensates persons injured as result of negligent driving of motor vehicles in timely and caring manner.

 

It only applies if bodily injury or death due to negligence or other wrongful act of driver, owner or employee of owner acting in performance of duties as employee.

 

The primary source of income for the compensation scheme is a levy raised on fuel and diesel sold.