DEATH AND INJURY ON THE ROADS.

DEATH AND INJURY ON THE ROADS.

THE COMPENSATION OF VICTIMS IN WESTERN AUSTRALIA.*

Last1 of the Australian States to enact legislation establishing a scheme of the kind we have come to know as 'compulsory third party motor vehicle insurance', Western Australia was able to draw on the experience of the other States, of the United Kingdom and of New

Zealand. Our special debt is to South Australia%hose Act was the main source of our borrowings. But Western Atlstralia has not been content with borrowings. Indeed it might well be said, especially because of the establishment of the Motor Vehicle Insurance Trust and the Motor Vehicle Insurance Fund; that our Act has carried to a point of maximum achievement the pattern of the Acts upon which it is modelled. Which is not to say, as will appear, that the achievement fully reflects the intentions of the Western Australian Parliament, nor is it to say that the writer considers that the achievement is enough.

* A paper prepared for the Tenth Annual Conference of the Australian Universities Law Schools Association in August 1955.

1, New Zealand pioneered in this corner of the world with the Motor-vehicles Insurance (Third-party Risks) Act 1928 (now embodied with amendments in Part V of the Transport Act 1949). Tasmania followed with the Traffic Act 1935, sec. 2 of which inserted Part VII in the Traffic Act 1925. The Queensland Motor Vehicles Insurance Act 1936 came into operation on 1st March 1937. It was followed very closely by the South Australian Act No. 2332 of 1936, sec. 31 of which inserted Part IIA into the Road Traffic Act 1934: Part IIA came into operation on 1st April 1937. Two years later Victoria enacted the Motor Car (Third Party Insurance) Act 1939 (now consolidated as Part V of the Motor Car Act 1951). New South Wales avoided the booby prize by enacting the Motor- vehicles (Third Party Insurance) Act in 1942. The Western Australian Act came into operation on 1st July 1944. New Zealand, incidentally, was first in the British Commonwealth. The earliest United Kingdom legislation was the Road Traffic Act 1930; the other important Act is the Road Traffic Act 1934.

2 But South Australians should not be too flattered. The reason for copying their Act given by the Minister for Works during the debate on the 1938 bill was:-"We copied the South Australian Act not because of any particular virtue in that Act, but because the insurance companies told us that if we copied it, they could quote their rates of insurance:" (1938) 102 PARLIAMENTARY DEBATES (Western Australia; hereinafter PARL. DEB.) 3083.

3 Described in some detail, infra at 260, 265-267.

'Thc writcr's principal aims in this article are : -

( I ) To consider the purposrs sought to be achieved by those who ha,vc made our law governing recovery of damages in respect of prrsonal injurics or death caused by automobiles. I t may not be easy to say with confidence what were the purposes which moved our judges in the development of that part of the law of tort which is concerned with the award of damages in respect of personal injuries or death suffered on the highway. And if Parliamentary debates are any guide to that abstract quantity "the intention of the legislature", it certainly is not easy to say with confidence just what were the purposes which moved our Parliament in proposing to compel the owners of automobiles to insure against the tort liability of themselves and their drivers in respect of physical injury or death caused to third parties. Rut enough may be known to warrant the conclusion that the purposes of the judges and the purposes of Parliament are in fundamental conflict. Yet in our Act Parliament gave comfort! to the rules of the law of tort.

(2) To make an assessment of the achievement of our Act. I t may appear that the purposes which are in fact being served are often neither those of the judges nor those of Parliament.

( 3 ) To make certain submissions about the desirable purposes of law touching recovery of damages in respect of personal injuries caused by automobiles and, in the light of the study of the achievement of the present law, to suggest how the law might be changed so as to achieve thosr desirable purposes.

I. THE PURPOSES SOUGHT T O BE ACHIEVED

BY THE LAWMAKERS.

Tize judges and the common law of tort.

At the time of the first appearance of the motor vehicle, the 1a.w of tort offered these principles relevant to accidents on the highway:"

(i) Where loss is caused to one person by the fault of another, the loss should be shifted to thc person at fault. Implicit is an expression of the moral srntiment of retribution6 and the

4 And maybe nourishment in abolishing jury trial; see infro at 231, n. 125. 5 Trespass liability was qualified by requiring the plaintiff to show negli-

gence where the accident occurred on the highway: Gaylor & Pope Ltd. v. Davies & Son Ltd., [I9241 2 K.B. 75, 49 L.Q. REV. 362.

6 "Fault" is used here in a sense wide enough to comprehend vicarious liability: See the judgments of Denning L.J. in Jones v. Manchester

purpose of deterring conduct dangerous to othem7

(ii) Where loss is caused to a person by his own fault, the loss should lie where it falls. Implicit is a moral sentiment of retribution and the purpose of deterring conduct dangerous to oneself and to ~ t h e r s . ~

(iii) Where loss arises without fault, it should lie where it falls.g

These rules were concerned only with determining the incidence of loss as between individuals. At this stage, the common law judges had barely begun to think of the possibility of lega,l rules directed to loss-distribution.1°

The functioning of the first rule is of course dependent on the person at fault being able to lift the Ioss from the victim;ll it is dependent on the person at fault being 'financially responsible.' Modern technology, of which the motor car is one expression, has enormously increased the power of one individual to do physical harm to another,12 and in consequence lessened the chances that the

Corporation, [I9521 2 Q.B. 852, at 870; Broom v. Morgan, [1953] 1 Q.B. 597; and Jones v. Stavely Iron & Chemical Co., [1955] 2 W.L.R. 69, [1955] 1 All E.R. 6. Perhaps in this connection "ethical retribution" is too strong and Glanville Williams's "ethical compensation" is preferable (see The Aims of the Law of Torts, (1951) 4 CURRENT LEGAL PROBLEMS 137, a t 141). But it would seem that it is considered that "ethical retribution" should finally prevail since the master is entitled to be indemnified by the servant: Semtex, Ltd. v. Gladstone, [I9541 2 All E.R. 206; Davenport v. Commissioner for Railways, (1953) 53 State R. (N.S.1V.) 552. Appeasement of the victim may have been important at one stage in our legal history; it still survives to bolster the moral sentiment requiring retribution.

7 "Pecuniary compensation is not in itself the ultimate object or a sufficient justification of legal liability. I t is simply the instrument by which the law fulfils its purpose of penal coercion;" SALMOND, THE LAW OF TORTS (10th ed., 1945) 18-19. And see the other references cited by Glanville Williams, loc. cit., a t 144.

8 Rule (ii) prevailed over Rule (i) if both were applicable, though the Courts were able to juggle the rules via the "last opportunity" doctrine.

Q T h e loss lies on "la victime choisie par le destin." The phrase was first used by Ripert and was borrowed to describe this situation by SAVATIER, I TRAITE DE LA RESPONSABILITE CIVILE 422.

10 Rylands v. Fletcher, (1868) L.R. 3 H.L. 330, and vicarious liability were, admittedly, already expressing a philosophy of le risque cr66. But this philosophy is still concerned with adjusting losses between individuals, although, it is true, there is a short step from the idea of le risque cr66 to the idea of loss-distribution.

11 Except where the context indicates that it is limited to the person injured, the word victim is used in this article so as to include a dependant of a person injured.

12 Roscoe Pound recently described the difference between our age and the past by recalling that, if a man got drunk a half-century ago his horse

first rule will achieve more than a very limited operation.13 The appearance of the motor vehicle corresponds nearly enough in time with the development of the practice of liability insurance. I t must have been apparent to the courts tha,t, provided they did nothing to defeat this practice, i t would substantially increase the chanccs14 that victims who were injured by insured motorists would be relieved of their losses. But it must also have been apparent that the price would be the deflection of the first rule and the defeat of its purposes of retribution and deterrence. In place of the shifting of the incidence of loss from one individual to another individual, insurance achieves the distribution of loss; the dissipation of the loss by spreading it over the whole group of policy-holders. Though we have no indication in the law reports of conscious choice,'"he judges were content to pay the price. No attempt was made to defeat liability insurance; the judicial attitude was very much that of the three wise monkeys. But once retribution and deterrence have been abandoned to the extent that voluntary insurance has been allowed to deflect the first rule, the

took him home; quoted by Tharnton & McNiece in (1954) 29 N.Y.U.I.. REV. at 1676.

13 The Columbia Report (Report of the Committee to study Compensation for Automobile Accidents, 1032; the Committee was appointed in 1928 under the auspices of the Columbia University Council for Research in the Social Sciences) indicated that where there was no insurance, the victim had but one chance in four of receiving any payment. A recent Yale survey showed that wheie there was no insurance, seven out of ten victims received nothing.

1.1 Liability insurance did not guarantee that the victim would be relieved of his loss. Even if the person causing the loss had done nothing to forfeit the policy, his insolvency might defeat the victim. Special provision was made in England by the Third Parties (Rights against Insurers) Act 1930 to avoid the defeat of the third party by the bankruptcy of the insured: prior to this Act, in the event of the insured's bankruptcy, the policy money became part of his general assets and the third party ranked as an ordinary creditor only. Special provisions in the New Zealand, United Kingdom, and Australian third-party motor vehicle legislation are considered infra, at 246, note 165. And, in any case, the victim was now opposed by a powerful adversary in the battle to establish in the Courts that he should be relieved of the loss. The Colutnbia Report indicated that where there was insurance, sotne payment was received by the victim in 857' of cases, though the adequacy of payment decreased with the seriousness of the injuries suffered by the victim. T h e greater the amount of the claim, the more likely it is that the insurance company will fight it. On the American experience see McNiece and Thornton, Automobile Accident Prevetztion and Compensation, (1952) 27 N.Y.U.L. REV. 585, at 586, and Corstvet, T h e C'nconzpensated Accident and its Consequeizces, (1936) 3 LAW R. CONTEWP. PROR. 466.

15 There do not appear to be any reported cases prior to Tinline v. White Cross Insurance, [I9211 3 K.B. 327. This case and James v. British General Insurance, [I9271 2 K.B. 311, are discussed infrn at 228.

question inevitably arises whether retribution and deterrence have any place at all in this part of the law, whether they might not more properly be served elsewhere in the la.w, and the law of tort bc confined, in this context, to ensuring compensation to the victim. One might have expected the practice of liability insurance to find reflection in a radical transformation of tort rules so as to direct them to the purposc of loss-distribution. I t is true that our judges are inhibited by professed denials of law-making competence; but Rylands u. Fletcher1" could have been so developed as to eclipse the old rules.17 Once recognise that achieving compensation is a value in itself and the way is clear to rules imposing strict liability and to the abolition of the drfence that the victim was himself at fault. But our judges, by and largr, left the rules unchanged, and by hocus pocus expressed in a rule of the law of evidence that the fact of insurance must never be mentioned in court, insisted that everything was just as it was even though it clearly was not.15 Yet they were not entirely convinced by their own magic. The increasing scope of vicarious liability is at least in part inspired by a search for an available insurance cover.lg The confirmation received in Ormrod v. C r o s ~ u i l l e ~ ~ of a.n important extension of vicarious liability indicates the continuing fertility of the inarticulate premise.21

16 (1868) L.R. 3 H.L. 330. Its relative barrenness in the years that followed and its near death in Read v. Lyons, [I9471 A.C. 156, are in marked contrast with the course of judicial decision in France following L'affaire Jand'heur, [1930] Dalloz Jurisprudence (hereinafter D.) I. 59, as to which see infra a t 207-208.

'17 Especially since, we are told, the motor car was at first popularly regarded as a "devil waggon:" Nixon, Changing Rules of Liability in Autonaobile Accident Litigation, (1936) 3 LAW S. CONTEMP. PROB. 476.

18 T h e hocus pocus is starkly revealed in the judgtnent of Finnemore J. in Semtex, Ltd. v. Gladstone, [I9541 2 All E.R. 206, when he said, "Of course it is obvious to anyone who uses his eyes in this court, apart from the evidence that was given, that, in the result, this is a coritcst between much more seasoned warriors than even Serntex, Ltd., or Mr. Gladstone. Behind the scenes are two well known iusurance companies" (at 209). But a little later he said, "Justice, as we conceive justice in these courts, requires that the person who caused the damage is the person who must in law be called on to pay damages arising therefrom" (at 212).

19 See James, Accident Liability Reconsidered: T h e Iinpact of Liability Insurance, (1948) 57 YALE L.J. 549, at 564.

20 [I9531 1 W.L.R. 1120. 2B Cf., in the United States, the development of the "family-purpose doctrine"

so as to make available the insurance cover taken out by the head of the family. A similar purpose is involved in the "business car doctrine." The search is for some technique by which to unlock access to the suspected liability insurance policy and so ensure compensation of the victim. The making of picklocks is of the essence of judicial law-creation; only Parliament can take a battering ram to the door.

The triumph of the objcctivc test of ncgligcnce brings us nearer to a system of strict liability.*' Perhaps the decreasing significance of any moral content in the law's requirement of 'fault' has made the law tolerable enough to survive. Professor C. 0. Gregory's phrase, "boot- legal", used by him in a slightly differcnt r ~ n n e c t i o n , ~ ~ may be appropriate to describe the modern idea of negligence. And once the plaintiff is past the judge, jurymen are often ready to operate on the very rule of strict liability which his honour may have been at pains to tell them did not apply. I t will be submitted hereafter that the abolition of the jury in Western Australia in the trial of actions for personal injury caused by motor vehicles has meant a retreat from strict liability.

The record of the common law judges is in marked contrast with that of their French brethren.*l The story of the long sleep of Article 1384 of the French Civil Code and its awakening at the close of the last century to answer the demands of a changed society is one of the most fascinating stories offered by any legal system. Articles 1382 and 1383 based liability for loss caused to others on fault; Article 1384, however, provided that: "On est responsable non seulement du dommage que I'on cause par son propre fait, mais encore de celui qui est causC par le fait des personnes dont on doit rCpondre, ou des choses que I'on a sous sa garde." Most French writers consider that Article 1384 was intended only as an introduction to Articles 1385 and 1386 and thus was confined to loss caused by animals and ruinous buildings, raising in these situations a presumption of fault. But urged on by Josserand and Saleilles, the Cour de Cassation began a new revelation in 1896 with a decision in which it declared an employer responsible, independently of any fault, for an accident caused to a workman by the explosion of a boiler.26 I t was anticipated that the introduction of workers' compensation legislation in 1898 would be taken to have put an end to the need for the new revehtion. Just for a time the anticipation was realised and "l'art. 1384, al. ler, rentrait dans le sillage de l'art. 1 3 8 2 . " ~ ~ But it emerged again in the decision in Cie. fran~aise des tramways de Bordeaux C. Chem. de fer

22 See Glanville Williams, loc. cit., at 159-160. 23 Trespass to Negligence to Absolute Liability, (1951) 37 VA. L. REV. 359,

at 378. 24 The account in the text is taken from SAVATIER, I TRAITE DE LA

RESPONSABILITE CIVILE (12th ed., 1951) 421 et seq. There is an excellent comparison of French and English experience in LAWSON, NEGLIGENCE IN

THE CIVIL LAW. 25 Guissez, Cousin et Orielle C. veuve Teffaine, [I8971 D. I. 433. 26 SAVATIER, op. cit., 424.

du iMzdz," arising out of a Bordeaux dock fire. The insurance companies sccared a reversal by statutc of thc decision in that case, and thus an implicit confirmation of the new revelation. The question now raised was whether tile new revelation estcnded to "le fait de choses dociles", of things "fidtics h la main dc l'homme." Could the act of a thing of this class be distinguished from the act of the man under whose care it was? Savatier finds the inarticulate premise which determined the answer in the development of liability insurance: -

"Seulement, les premihres dCcades du XX sihcle connurent ici une Cvolution comparable h l'apparition du machinisme industriel au XIX sihcle. L'automobile, rare d'abord, se gCnCralisa vite et partout. Et sa vitesse, donc son danger, ne cessa de croftre. Ainsi, l'accident d'automobile devenait un pkril quotidien, contre lequel il n'Ctait plus admissible de ne protCger que les victimes rCussissant A prouver la faute du conducteur.

En m&me temps, la fin du XIX sihcle et le dCbut du XX assistaient au dCveloppen~ent gCnCralisC de l'assurance de respon- sabilitC (v. supra, n. 2 ) . Les automobilistes prenant l'habitude de s'assurer, I'indemnisation de la victime, en l'absencc de faute de leur part, ne risquait plus de leur porter un injuste prkjudice: l'assurance paierait! Grdce h elle, le soulagement systCmatique de la victime devenait possible aux tribunaux (v. supra, no. 282

et infra, no. 741) .

D6s lors, le dynamisme du droit prdtorien devait nCcessairement faire sauter la barrihre rCsultant de la distinction du fait de l'homme et de la chose. L'art. 1384, al. ler, assez souple pour &tre faconnC h sa guise pas la jurisprudence, pouvait se preter aux nouveaux besoins sociaux. Aprhs tout, si obCissante que soit la voiturc, l'arcident n'est-il pas, en effet, caus& par le fait de l ' a~ tomobi le?"~~

After some hesitation the Cour de Cassation (Chambres RCunies), in Jand'heur C. les Galelies bel fortai~es*~ "affirma la responsabilitC de plein droit du gardien de toute chose inanimCe, m&me fidhle 2 la main de l'homme, et independamment de ses dangers prop re^."^^ At the same time the Court adopted the phrase 'presumption of responsibility' in place of 'presumption of fault' to describe the effect of Article 1384. Liability under Article 1384 is not absolute: 'fait de chose' requires

some evaluation if it is to have meaning. Esmein describes the extent of liability as follows:-

( a ) The liability is absolute when it is proved that the cause of the accident is a defect in the thing; for example, the fracture of a metal part or the blowout of a tyre. The custodian is lia,ble in such a case even if it is certain that, even with the greatest diligence, he could not know of the defect and accordingly prevent its consequences. This is thus a clear case of liability without fault.

(b ) But the custodian is not liable when all the circumstances of the accident are known and they include an act, unforeseeable and unavoidable by the custodian, which is neither a defect in the thing nor the fault of a person for whom the custodian is responsible, as being his servant. I t is said that such act as respects the custodian is a foreign cause of the damage or a fortuitous case (cas fortuit) or one of force majeure. I t may be an act of nature like the wind, rain, or frost, or the act of a third party, or the act of the victim himself.s1

For a time, fault continued to be relevant in the field of motor vehicle accidents to the extent that once fault of some person (the victim or a third party) other than the 'gardien de la chose' was shown, Article 1384 had no application. Article 1382 then applied and the victim could not recover save by showing fault on the part of the 'gardien.' Thus the pedestrian could not recover from the 'gardien' of the motor vehicle which knocked him down if the pedestrian was at fault, unless he could show the 'gardien' was also at fault, in which event the loss would be apportioned. The final working out of the inarticulate premise (the fact of liability insurance) was reached in 1934 when the Cour de Cassation held32 that the fa.ult of the pedestrian did not relieve the 'gardien' of any liability. I t had already been heldSS that where two vehicles collide, the 'gardien' of each is liable for damage caused to person and propertys4 of the other, irrespective of

81 (1953) 2 AM. J. COMP. L. 156, at 158. The French principle does not therefore cover every occasion of loss connected with the operation. of an automobile even when the loss was caused by some person other than the victim. Obviously it cannot cover loss suffered by the driver of the single automobile. Thus there are limitations on the "liability" basis of selecting losses for compensation even when fault is irrelevant. I t will be submitted hereafter that the "liability" basis is inadequate. French experience is not offered here as an ideal; it is offered only to show how much more might have been done by our judges.

32 SOC. Dunand-Frare et Seurat C. veuve Hainglaise, [I9341 D. I. 41. as Dame veuve Delcayre C. Messal, [I9331 D. I. 57. 34 Liability for property damage had to come along with liability for personal

injury. Judicial law-making which must appear to proceed under the banner of logic could not very well make a distinction. It is intriguing

who was at fault. Of this decision Savatier says:- "Cette jurisprudence eiit kt6 absurde si elle ne se fQt combinCe avec la pratique de l'assurance de responsabilitk. Car les tribunaux, en imputant tout le dommage CprouvC par chacun des automobilistes A la responsabilitC de I'autre, rkussissent B faire payer I'ensemble de ces dommages par les assureurs de re~ponsabilitk."~~

Modern French jurists appear to be waging a campaign against what are thought to be departures from 'sound principle' in the interpretation of Article 1384. Sa,vatier, for example, would ask the Cour de Cassation to return to its old decisions and deny recourse to Article 1384 in all cases where it is shown that the damage resulted from fault, whether of the victim, the 'gardien', or some other person.36 But it seems to the writer that 'sound principle' must suffer so long as it is left to the Courts to handle the social problem of caring for the victims of motor vehicle accidents.

The achievement of the French judges was ma.de easier, it is true, by the greater measure of freedom which the French legal system allows to its judges. Yet it is hard not to feel that our judges could have shown more courage. We have seen that there has been some erosion of tort rules but that there has never been a frontal attack. Subject to some development of vicarious liability and a weakening of the moral content in the idea of fault, the tort rules remain unchanged. The toleration of liability insurance, involving a deflection of the first rule, is but the acceptance of a necessary evil, a price to be paid, to ensure compensation to the innocent person who has been harmed by the fault of a, financially irresponsible wrong-doer. The second and third rules continue unchanged and undeflected. I t is - true that rule is one thing and practice is another, that juries may be told what the rule is; but there is little chance of knowing what count they have taken of it. But juries no longer decide in Western Australia personal injury claims arising from automobile accidents and their possible leavening influence has gone.

Parliament's purposes in enacting the M o t o r Veh ic le ( T h i r d Party Insurance) Act .

The writer has spent many hours in reading all that was said in both Houses of our Parliament during consideration of the various

that English law strict liability under Rylands v. Fletcher is probably confined to damage to property: Read v. Lyons & Co., Ltd., [I9471 A.C. 156, at 172-3, 178, per Lords Macmillan and Porter.

35 SAVATIER, op. cit., 431. 36 SAVATIER, op. cit., 435.

hills out of which our I-1c.t was finally forgcd. At least it was an inst1,uctivc csc.rcisc in thc art of detcrrnining what is glibly called the "intrntion of the Icqislaturc", instructive enough to malic the writer hereafter morc than a little sceptical of anyone who is ready to reveal dogmatically what Parliamrnt intrnded in some legislative provision. And if the reading was not always stimulating or informative, there is rcward in having acquired what understanding can be had of the purposes which moved those who, our constitutional law would have it, made the statute.

The debates clearly reveal the differing political platforms of the two parties of the right and the party of the left on the issue of State or private enterprise. The first bill was introduced in the Assembly by the Minister for Works in the Willcock (Labour) Ministry on 30th November 1938.~' I t was introduced very late in the session and fizzled out in the Council. Another bill was introduced by the same Minister in the Assembly on 6th September 1939.~' I t was defeated by the Council's refusal to allow the State Government Insurance Office to participate generally in motor vehicle liability insurance. The Council insisted that the State Governrncnt Insurance Office should be confined to insurance against liability for personal injury.39 On the 27th August 1940, the Hon. A. Thomson successfully moved in the Council that a Select Committrr be appointed;1° the report of the Select Committee was presented on the 15th October." I t recommended that liability insurance should be provided by the establishment of a "Compulsory Co-operative Pool" into which would be paid premiums collected by the Traffic Department and local authorities on the issue of vehicle licences. The object was to keep administrative costs to a minimum. The report is silent on who should administer the Pool, in particular on whether the State Government Insurance Office should have any part, and on whcther any profit might be made. On 19th November 1941 the Minister for Works (in the Willcock Ministry) introduced a new bill in t!le Assembly providing that insura,nce should be under- taken by a fund or pool to be administered by the State Government Insurance Office.42 It immediately became apparent that the Pool which the members of the Select Committee had had in mind was one controlled by private insurance companies and the bill came to

37 (1938) 102 PARL. DEB. 2604. 3s (1939) 103 PARL. DEB. 518. as (1939) 104 PARL. DEB. 2196-2199. 40 (1940) 105 PARL. DEB. 413. 41 [I9401 I1 PARLIAMENTARY PAPERS (Western Australia) No. A2. 42 (1941) 108 PARL. DEB. 2017.

grief in the C o ~ n c i l . ~ ~ Yet a.nother bill was introduced by the Minister for Works (in the Willcock Ministry) in the Assembly on the 22nd September 1943.~' The idea of the pool was abandoned and the scheme of the 1939 bill revived. This time the champions of private enterprise were prepared to allow the State Government Insurance Office into the field," and the bill became law.

Amendments were passed in 1944 and 194.5. In 1948 the Act was amended so as to establish a pool called the Motor Vehicle Insurance Fund, administered by the Motor Vehicle Insurance Trust. The bill was introduced on 7th October 1948 by the Minister for Local Government in the McLarty-Watts (Liberal Party and Country Party coalition) Mini~try.~"ll insurers operating under the Act (including the State Government Insurance Office) were to have a share in the administration and in the profits and losses of the Fund. The immediate source of this proposal was a conference of local authorities but, we have seen, the establishment of a pool had been recommended by the report of the Select Committee of the Council in 1940.'~ I t is not obvious why the parties of the right should have promoted the pool ,idea. Perhaps the private insurance companies were glad to see established a scheme of re-insurance of uncommonly unpredictable risks. Perhaps Mr. Rodoreda hit the nail on the head when he said:- " . . I believe I have discovered the reason. I t seems to me that it will be practically a matter of 'all for nothing' for the companies. They will not have to do anything in the matter except participate in any profit that may be derived, simply because they happen to be in the business at the time when the measure comes into operation. Naturally the premiums committee will fix premiums that will ensure at least some profit to the companies. There is little expectation of the insurance offices having to meet any big loss."48

Public control of the Trust's activities was increased by an amendment passed in 1951 which makes the Minister's approval

45 Perhaps because Western Australia was by now the only Australian State without legislation compelling motor vehicle third-party personal injury liability insurance. Perhaps too they had in mind that someone would have to take the bad risks and the State Office would be useful for this purpose.

46 (1948) 121 PARL. DEB. 1497. 47 A pool had in fact operated in New Zealand from an earlier date without

any publicity given or sought. 49 (1948) 122 PARL. DEB. 1995. How far Mr. Rodoreda's predictions have

been realised may be gauged from the figures in Appendix "B".

necessary for premiums fixed by the Trust. In 1954 amendments were passed which make important changes in the relations between participating insurers and the Fund.49

I t may be that the concern of all parties with the issue of State versus private enterprise led members, for the most part, to ovcrlook what function the enterprise, State or private, should serve. An unkind person might say that beyond thc tub-thumping point, members did not try to understand what they were doing. But it is with classically lawyer's law that the Act meddles, and members might well have tried and failed. Such indications as there are lead the writer to hazard these guessses as to what members thought they were about. ( I ) They were concerned that injured persons should not go uncompensated. On the introduction of the 1943 bill,jO the Minister in charge emphasised the toll in human suffering of motor vehicle accidents and the immense social problem that that toll involved.51 The problem was thus always seen as one of remedying human suffering so far as money can achieve this. Nowhere is there any mention of retribution whether on the driver, the owner or the victim. And where the absence of a prospect of compensation is mentioned as a deterrent to the potential victim, it is mentioned only to be rejected.52 ( 2 ) Members were

49 Changes made by the amendments made in 1944. 1945, 1948, 1961 and 1954 are considered in more detail in the study of the Act; infrn at 214.

60 And also of the abortive bills of 1938, 1939, and 1941; see (1938) 102 PARL. DEB. 2737-2738, (1939) 103 PARL. DEB. 748, and (1941) 108 PARL. DEB. 2345.

W, (1943) 112 PARL. DEB. 786. 62 See, for example, the exchange between the Hon. S. Keenan and Mr.

S1eeman:- "Hon. N. KEENAN: T h e member for Fremantle (Mr. Sleeman) may have grounds for urging that the person who deliberately walks in front of a motor car and is injured in consequence, shall nevertheless receive compensation. Mr. Sleeman: That is going from the sublime to the ridiculous. Hon. N. KEENAN: Take another instance that may not be deserving of description as ridiculous: If a person steps off a footpath suddenly without giving any notice- Mr. Sampson: People often do that; in fact, it is a habit. Hon N. KEENAN:-and in consequence the driver of a motor car, through no negligence on his part, hits that person and does him an injury, from my point of view the latter has no claim. Mr. Sleeman: Negligence is hard to prove, so the person hit gets nothing. Hon. N. KEENAN: I am not prepared to discuss whether we should - . alter the law with regard to negligence . . . . " (1938) 102 PAUL. DEB. 3078.

Mr. Keenan, i t will be obvious, was a lawyer. His attitude is typical-let Parliament not sully the purity of the common law. See also the exchange between Mr. Marshall and Mr. Boyle (ibid., at 3075) :-

concerned that, save in exceptional cases, compensation of the victim should not involve shifting of loss onto another individual; they were concerned that compensation should be achieved by loss-distribution. In fact, it will be seen that the provisions of the Act are carefully drawn to make certain that, save in exceptional circumstances, the driver and owner of any vehicle in respect of which insurance has been effected shall be protected against loss-shifting.53 ( 3 ) Members were concerned that the burden of distributed loss should not be increased by inefficiency in distribution. This is evident throughout the debates. I t was clearly behind Mr. Thomson's motion calling for a select committee, the recommendations of that committee, and their implementation by the amendments in 1948.

If members were content to leave it to the tort rules to select the occasions when persons injured should be compensated by loss-distribution, they ha,d only the vaguest ideas of what the tort rules might be and what purposes they were intended to serve. Even the Ministers in charge were groping in darkness5"here is then a fundamental

"Mr. Marshall: Do you think that such legislation would influence drivers to be more reckless inasmuch as they know that the injuries they cause will be covered by compensation? Mr. BOYLE: NO, I think the risk is i n a different direction. The pedestrians, knowing they are covered, may be prepared to take more risks. There are many philosophic pedestrians who are hardy souls and who, if they are covered-as they will be for practically an unlimited amount under the Bill-will think to themselves, "Whatever happens I shall be all right financially." Mr. Marshall: I have no soul at all but I have respect for my mortal welfare. Mr. BOYLE: The honourable member has reached the age of discretion in that regard, but the younger fry, willing to try anything once, may decide to dash across the road in front of an oncoming car. I t will be a relief to their parents to know that if an accident does occur they will not be left to shoulder the burden entirely."

Mr. Boyle, incidentally, showed that innocence of the effect of the tort rules which the writer submits was typical of very nearly all members.

53 See infra at 217 et seq. At first there was no provision for protection against loss-shifting where the victim was a guest. This omission, it will be seen, was remedied by an amendment in 1944, though, it is true, a limit on the protection remains: infra at 223 e t seq.

54 See, for example, the Minister for Works in 1941, Mr. Millington ((1941) 108 PARL. DEB. 2345-2351), and the Minister for Local Government in 1948, Mr. Watts ((1948) 121 PARL. DEB. 1739-40), in expounding the advantages of the pool system. Mr. Watts said:-"The only occasions on which i t will be necessary to have the question of negligence determined by the court will be in those few cases where a pedestrian is injured through his own negligence and the negligence of the driver of the vehicle is denied." He was, of course, wrong. T h e Solicitor-General did little to relieve the darkness on an occasion when his help was sought: See (1939) 104 PARL. DEB. 1941.

conflict between Parliament's intentions and the purposes of the tort rules. The tort rules do not consider it important in itself that injured persons should be compensated. Those rules are concerned only to scr that an individual injured by the fault of another individual shall be compensated. Thus retribution and deterrence may br served. Where an individual suffers injury by his own fault, the tort rules consider that it serves him right. Where an individual suffers injury without anyonr's fault, he should bear his injury bravely. Nor do those ruic-s contemplate loss-distribution. However conscious they may be of the unreality, judges faithful to the tort rules must assume that compensation of any individual involves shifting loss from him to another i n d i v i d ~ a l . ~ ~

Lawyers are fond of the metaphor of an "unruly horse." I n the Motor Vehicle (Third Party Insurance) Act I 943-54 Parliament innocently chose an animal still very much with ideas of its own. Where rider and animal have gone is the principal enquiry in the next part of this article.

11. THE ACHIEVEMENT O F THE MOTOR VEHICLE (THIRD PARTY INSURANCE) ACT.

I t is proposed now to review the principal provisions of the Act and to attempt to gauge t!ieir present function. Thus we may have some knowledge of the results in fact of the opposition of purposes which, the writer has sought to show, those provisions involve. Com- parisons with the provisions of the corresponding Acts in the other Australian States and elsewhere will be made. At times, the discourse will stray from the descriptive to the critical and thus anticipate the concluding part of this article.

A. THE DUTY T O INSURE.

T h e incidence of the obligation. The duty to take out liability insurance" is imposed on the

owner57 of the motor ~ehicle,~%ave where the owner is the Crown

55 See the passages cited, supra in note 18, from the judgment of Finnemore J. in Semtex, Ltd. v. Gladstone, [1954] 2 All E.R. 206.

56 Sec. 4 (1). 57 Defined in sec. 3. Where a vehicle is under hire-purchase, the person in

possession is the owner. An amendment by the 1945 Act (sec. 2) excludes the grantee under a bill of sale by way of security unless he takes possession to enforce his rights under the bill. On the face of it, it would seem to follow that where a vehicle is subject to a bill of sale, there is no one subject to an obligation to insure for the grantor of the bill ceases to be owner when he gives the bill. T h e Minister, i n moving the

in right of Commonwealth or State. Where the Crown in right of the State carries its own insurance it has the same rights and liabilities as if it were the in~urcr.~"pecial provision is made for vehicles entering LVestern Australia from other States or territories of the Commonwealth. If the vehicle is licensed in a State or territory of the Commonwealth prescribed by the Governor by order in council and is insured under the law of that State or territory, the owner is not required to insure it under the Act.6o Provision for insurance of vehicles not coming from prescribrd States or territories is also made.G1

At first sight there would appear to be an obligation to insure even before the vehicle is taken onto the road.62 But, no doubt, the Act

amendment, was all at sea ((1945) 115 PARL. DEB. 504). M'here a vehicle is under hire for a period in excess of six months, the person in possession under the hiring agreement is the owner. These provisions reflect a principle that he who has the benefit of the vehicle should bear the costs of loss distribution. Cf. the New Zealand Act, sec. 2, and the New Zealand Motor-vehicles Act 1924, sec. 2. The South Australian Act, sec. 70a, makes exceptional provision only for the hire-purchase situation. See also the Victorian Act, sec. 37. The provisions of the New South Wales .4ct, secs. 5 and 21, have the same general effect as the Western -4ustralian -4ct. 'Owner' is not defined in the Queensland Act.

58 Defined in sec. 3. Amongst others, trains, trams, and trolley buses are excluded. Cf. New South Wales Act, sec. 5.

69 Sec. 3 (1) and (3). 60 Sec. 3 (4). T h e words of the subsection might be taken to require

unlimited cover of owner and driver by the out-of-State vehicle's policy. But it might be anticipated that such cover as is required in the home State or territory is sufficient provided the State or territory has been prescribed. The following States and territories have been prescribed:- New South Wales, Victoria, Queensland, South Australia, Australian Capital Territory and Northern Territory. The cover provided by the policy required by the Western Australian Act extends to the whole of the Commonwealth (sec. 6 (1)) ; but, we will see, is subject to certain limitations. Sec. 3 (4) is copied from sec. 38 (2) of the Victorian Act, but our sec. G (1) is more generorts than the Victorian sec. 44 ( I ) under which cover outside Victoria is limited to States and territorie? prescribed by the Governor in Council. Victoria thus insists on a strict reciprocity. Vehicles are exempt from the obligation to insure under the Victorian Act if they are insured under the New South Wales, Queensland, South Australian or Western Australian Acts. The policy under the New South \Vales Act extends only to prescribed parts of the Commonwealth: sec. 10 (1) (b) (i) . All States and territories of the Commonwealth have been prescribed: reg. 18 (1). Vehicles are exempt from the obligation to insure under the New South Wales Act where they are insured under the Victorian, South Australian, Queensland or Western Australian Acts, or under the Ordinances of the Australian Capital Territory or the Northern Territory. The significant omission is again Tasmania.

a1 Sec. 17, taken from South Australian Act, sec. 7Oj.

62 Sec. 4 (1) . ('Motor vehicle' is defined in sec. 3 so as to include a vehicle 'intended to be used on roads') .

will bc so construed that no breach of the obligation to insure arises unless and until thr ~rehicle is used on a road. A penalty is provided for using or causing or permitting. use on a road without there being a policy in force complying with the Act.C3 But there is no specific penalty for brcach of the obligation to insure;& the duty to insure is tied to the duty to license the vehicle. Thus no licence can be issued unlcss the insurance premium has been paid, and the policy of insurance is in~orporated in the same document as the licence.66

The insurer.

All policies under the Act must, since 1948, be taken out with the Motor Vehicle Insurance Trust;66 the Trust cannot refuse to insure.67

63 There is a substantial money penalty and unless the Court otherwise orders, the convicted person is disqualified from holding a vehicle licence and/or car licence for 12 months: sec. 4 (4). following the South Australian Act, sec. 70b (1). There is a time limit on proceedings: sec. 4 (5). The allegation in the complaint that the vehicle was uninsured is prima facie evidence of the fact so alleged: sec. 4 (6). The owner must produce evidence of insurance when required by an inspector under the Traffic Act or by a member of the Police Force: sec. 4 (7).

04 The general penalty in sec. 28 could, however, be applied. Sec. 4 (1) adopts sec. 39 (1) of the Victorian Act; see also the New Zealand Act, sec. 67. T h e Queensland Act limits the obligation to insure to periods when the vehicle is registered: sec. 3 (1). The United Kingdom Act of 1930 does not place an obligation to insure on anyone specifically described. Sec. 35 makes it unlawful for any person "to use, or cause or permit any other person to use a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person" a policy of insurance or security. T h e South Australian Act, sec. 70b ( I ) , the New South Wales Act, sec. 7, and the Tasmanian Act, sec. 63, all follow the United Kingdom Act in this respect.

66 Cf. the United Kingdom Act, secs. 36 ( 5 ) . 39, and 40; New Zealand Act, sec. 5; South Australian Act, sec. 70b (6) ; Queensland Act, sec. 3 (5) ; Tasmanian Act, sec. 66; Victorian Act, sec. 41; New South Wales Act, secs. 8 and 9.

66 The Trust is described in some detail, infra, a t 260 et seq.

67 In New Zealand, the United Kingdom, and in every other State of the Commonwealth save Tasmania provision is made for authorising insurance companies to act as insurers. In the United Kingdom an "authorised insurer" is defined in the Assurance Companies Act 1946, sec. 5, and a person qualified to give security is defined in sec. 37 (1) (a) of the Act of 1930. An insurer may refuse to insure any vehicle. In New Zealand the insurance must be taken out with a company carrying on, in New Zealand, the business of accident insurance, or with the Govern- ment Accident Insurance Office: secs. 67 and 68. Accident insurance companies must comply with the provisions of the Insurance Companies Act 1940, secs. 6 et seq. (involving deposits by way of security) before undertaking business under the Act. If an accident insurer is qualihed and has notified his willingness to undertake business he cannot refuse

W h o s e liability is covered.

The policy required b j the Act must cover the liability' of the owner and of the driver" whether he drives with or without the consent of the owner." This wide cover follows the model of the South Australian Act.70 But the South Australian Act differs from the Western Australian Act in that the former has no provisions for ensuring compensation to the victim where the person liable is uninsured. In Western Australia, compensation to the victim is not dependent on insurance cover of the person liable.71' Under our Act, the "insurance policy" might well have been simply a device to secure payments into an unsatisfied judgments fund, the "insured" remaining subject to loss-shifting either directly or by recovery over by the fund which had met an unsatisfied judgment. Parliament need not have put up with any "evil" of avoided loss-shifting. What is possible and what is politically wise may of course be different things. Being compelled to pay a premium is more palatable to the owner if he gets in exchange a protection against loss-shifting. But practical politics did not require giving the driver, as driver, protection against loss-shifting. He is not asked to pay any premium. I t is true that the driver's protection against loss-shifting does not extend to the situation where he has driven the vehicle "without the authority

to insure: sec. 69. The authorising of insurance companies is provided for in Victoria by sec. 40 of its Act. T h e State Motor Car Insurance Office is deemed to be authorised: sec. 69. An autllorised insurer cannot refuse to insure a vehicle. Provision for approving insurers is made in New South Wales by sec. 14. The Government Insurance Office is an approved insurer. An approved insurer may refuse to insure subject to a right of appeal to a District Court or Court of Petty Sessions by the person seeking insurance: sec. 13. The provision in sec. 8 (1) (b) by which the person registering or renewing registration of a vehicle may simply nominate the Government Insurance Office means in practice that the Government Office does a substantial amount of the business (approx. 70%) and has no opportunity to refuse to insure. T h e private insurance companies, the writer is informed, seek to push third-party insurance onto the Government Office where they can do so without losing clients. In Queensland insurance must be taken out with a "licensed insurer" or the Insurance Com- missioner: sec. 3. Neither is bound to insure. In Tasmania insurance may be taken out with any person carrying on accident insurance or with the Tasmanian Government Insurance General Manager: sec. 62. Neither is bound to insure. In South Australia, insurers must be approved: sec. 70a (1). There is no State insurance office; no insurer is bound to insure.

68 Defined in sec. 3 so as to include any person who is in charge of a motor-vehicle.

69 Sec. 6 (1) (b) . 70 South Australian Act, sec. 70c (1) . 711 The uninsured vehicle provisions of the Western Australian Act are

discussed infra at 249-255.

of thr o?:.nrr or without rcasonablc grounds for believing that he had the authority of the But the protection afforded the driver izm other circumstances clearly reflects Parliament's intention that camprnsation of victims should not be achieved by loss-shifting.73

72 Sec. 15. The driver is not protected even though he reasonably believed he had authority if in fact the owner had not given authority. It is improbable that Parliament intended to set this trap for drivers. The driver cannot claim an indemnity from the Trust, and any sum paid by the Trust in discharge of his liability is recoverable from him hy the Trust. In some degree the section may be said to serve the purposes of deterrence and retribution though, of course, the fact that the driver was unauthorised would be of no consequence on an issue of tort liability.

73 The United Kingdom Acts of 1930 and 1934 have no provisions for compensation of the victim where there is no insurance. Nonetheless, they are careful to require only such cover as is necessary to ensure that there is a financially responsible defendant. Secs. 35 and 36 (1) of the United Kingdom Act of 1930 as interpreted in Ellis (John T.) Ltd. v. Hinds, [I9471 K.B. 475, do not require that there shall be a policy covering the personal liability of the driver. Thus, provided the owner is vicariously liable it is enough that the owner is insured against that vicarious liability, or that he has found security against that liability or has made a deposit under sec. 35 (4) : Marsh v. Moores, [I9491 2 K.B. 208; Semtex, Ltd. v. Gladstone, [I9541 2 All E.R. 206. The alternatives of finding security or making deposit show an intention not to go beyond "necessary evil." If the defendant is able to show that he is financially responsible he may, if he wants to, demonstrate his confidence in his own care by risking loss-shifting. The New Zealand Act has no provision for ensuring compensation to the victim where there is no person liable who is insured. But the owner's policy will always be available to the victim since the owner is subjected to a statutory vicarious liability whether the vehicle was driven with or without his consent: sec. 67 (1). There is then a policy against loss-shifting reflected in the protection given to the driver who has the authority of the insured owner and has a valid driver's licence: sec. 67 (1). The effect of the Tasmanian Act is not clear. The owner is subject to a statutory vicarious liability where the vehicle is driven with his consent: sec. 63 (2). It would seem then that sec. 63 (1) is complied with even though the policy does not cover the driver in that situation. Without more, the driver would then be exposed to loss-shifting. But sec. 70 (1) provides that "all claims to which this Part applies shall be made against the owner of the motor-vehicle in respect of which they arise." Does this subsection mean that one cannot sue the driver as well as the owner? The owner might in fact be uninsured while the driver is insured-perhaps under a drive-other-car clause in his own policy. And does sec. 70 (1) mean that one cannot sue the driver where the car is driven without consent? No action could be successfully maintained against the owner in such a situation. Granted that most often the driver who drives without consent will be financially irresponsible, yet he might not be. It is possible that he has driven in the honest belief that he has the consent of the owner and his driving is in fact covered by his own insurance policy. Two other questions come to mind: (1) May the owner's insurer pursue an indemnity claim against the driver if the owner's policy does not extend to him (the situation discussed in Semtex, Ltd. V. Glad- stone, [1954] 2 All E.R. 206) ? (2) Is the statutory vicarious liability

The Western Australian Act has in sec. 22 a badly drafted provision whose object is exclusively to protect against loss-shifting. I t arose out of concern for an employer whose employee uses his own car in the employer's business. Sub-sec. ( I ) extends the protection of the employee's policy to the employer "to the same extent as if the employer were an owner of such vehicle." Sub-sec. ( 2 ) reads:-

"Where the owner of a motor vehicle in respect of which a policy of insurance complying with this Act is in force uses the vehicle in connection with or for the purposes of the performance of his service as a servant of the employer of such owner, without the knowledge or contrary to the instructions of the employer, the employer shall not in any manner whatsoever be liable in respect of any claim for damages or compensation by any person injured by such vehicle whilst being so used by the owner thereof as such servant."74

One would have thought that sub-sec. ( I ) had done all that was necessary, but if more was needed, it is hard to see why it was thought fit to divide the common law occasions of vicarious liability of an employer into two groups, viz., to protect the employer by extending the insurance cover in relation to the first group, and, as to the second, to protect the employer by abolishing the common law rule

under sec. 63 (2) limited to the indemnity provided by a minimum policy complying with the Act? The Queensland Act makes use of the device of statutory vicarious liability of the owner for the act of anyone driving the vehicle whether with or without consent (sec. 3 (2)) and does not require any insurance of the driver (sec. 3 (1) ) who apparently is unprotected against loss-shifting whether against the victim or the insurer exercising a right of subrogation. There is a proviso to sec. 3 (2) , added in 1939, which limits the statutory vicarious liability to the indemnity provided by a minimum policy under the Act. Most of the protection against loss-shifting given by the South Australian Act was involved in making sure that there would be in all situations a person liable who was insured. It was not necessary, however, to protect the driver against loss-shifting where the owner is vicariously liable: sec. 70c. The Victorian Act (secs. 44, 48, and 56) and the New South Wales Act (secs. 10, 20, and 30) have substantially the same provisions as the Western Australian Act including provisions for ensuring compensation where there is no person liable who is insured. The New South Wales Act adds a statutory vicarious liability for good measure: sec. 16.

74 The section was inserted in 1944. One can sympathise with Mr. Hawke, the Minister in charge of the bill in 1944, who confessed to having read the section twelve times and who, after this, appeared to be little the wiser: (1944) 114 PAUL. DEB. 2115. The marginal note adds to the confusion by contradicting the terms of the section. Incidentally, the section does not seem to afford any protectjon to a principal who is vicariously liable for the acts of his agent or to a partner vicariously liable for the acts of his fellow partner.

in Canadian Pacific Railzelay u. L ~ c k h a r t . ~ ~ Is the sub-section designed to protrct the employer against what may be thought to be the stigma of being joined as a defendant where he has not acquiesced in the use of the vehicle? If it was thought that the rule in Canadian Pacific Railway u. Lockhart was bad, why was abolition limited to cases where there is insurance? There is one other point. The words "shall not in any manner whatsoever be liable in respect of any claim for damages or compensation by any person injured by such vehicle" are wide enough to prevent an action against the employer for harm to property. The words sit strangely in the context of an Act otherwise confined to harm in the form of personal injury.

There are provisions preventing termination of a policy by the Trust, continuing the policy notwithstanding the change of ownership of the vehicle, and extending the term of the policy 15 days after expiry of the licence.76 The function of these provisions is limited to protecting the defendant against loss-shifting since the uninsured vehicle provisions77 are ready to protcct the victim.78

Compensation of the victim will not be defeated by the fact that the policy was obtained by mis-statement or non-disclosure, or that the insured person has broken a term, condition or warranty or has failed to comply with conditions relating to what he should do or refrain from doing after t h ~ accident.79 But in these situations both

75 In [I9421 A.C. 591. 76 Secs. 19, 20 (amended in 1954), and 21 (in part repealed and re-enacted

in 1954). 77 Sec. 8. By definition a vehicle is uninsured if there is no policy "in

existence and in force:" sec. 3. 78 Sec. 70cb of the South Australian Act, by which the policy is not to be

affected by change of ownership of the vehicle, protects the victim. There is a similar provision in the New Zealand Act, sec. 7. The Queensland Act has provisions (secs. 3 (4) and 4) preventing revocation of a policy and continuing the policy in favour of the owner for the time being. These sections, like those in the South Australian Act and the New Zealand Act, protect the victim. On the other hand, the provisions (sec. 41 (8) and (10)) of the Victorian Act as to change of ownership and extending the period of the policy, like those in the Western Australian Act, exclusively protect against loss-shifting.

70 Sec. 7 (4) . The subsection is copied from the South Australian Act, sec. 7Od (4), where it is necessary to protect the victim, since South Australia has no uninsured vehicle provisions. Western Australia could well have omitted this subsection along with sec. 7 (5) and extended sec. 8, which is copied from the Victorian Act, sec. 48, to cover the situation where a policy has been forfeited. T h e New Zealand Act does not provide against forfeiture. T h e United Kingdom Acts of 1930 and 1934 have elaborate provisions. In some circumstances-where there is breach of a condition precedent other than those specified in set. 12 of the Act of 1934--the victim remains unprotected. T h e defendant is subject to such loss-shifting

owner and driver may be ~~xposed to loss-shifting. The Trust may recover over from the persol? liable in respect of the accident, and from the owner who is not lia.ble.x" The prime function served by loss-shifting in this context is quite different from that intended by the tort rules. Tile insured is in effect punished for failure to observe his obligations (owed immediately to the Trust, ultimately to other insured persons) to see that the occasions of loss-distribution are kept to a minimum; it is a matter of failure to limit the burden of distributed loss. The disciplirwy powers given the Trust are powerful indeed.s1 Punishment may be visited, in some cases, on an innocent driver. Thus the driver may not be at fa,ult in using the vehicle for a purpose other than that stated by the owner in his application for a policy. Yet if the accident occurs while the vehicle is being so used, there may be recovery over against the driver.@ Until 1954 the person who was in fact in breach of the obligation might escape, as where the owner was not the driver at tlie time of the accident and where he is not vicariously liable for the acts of the driver.83 The amendment in 1954 which makes possible recovery over against the owner even though he is not liable in respect of the accident shows

by recovery over as a policy allows. The Tasinanian .Act protects the victim against forfeiture and allows such loss-shifting by recovery over as the policy may provide: sec. 65. The Queensland Act has a general provision in sec. 3 preventing revocation of a policy during registration or renewal of registration; Queensland has no uninsured 1-ehicle provisions. The Victorian and the New Zealand Acts have no provisions preventing forfeiture. Each .4ct has uninsured vehicle provisions.

80 Provided the owner is "guilty of any of the matters ~nentioned in" sec. 7 (4). Recovery over against the owner who is not liable was added by amendment to sec. 7 (5) in 1954. There is a proviso protecting the owner and driver where the Trust has unreasonably disregarded a written request by the insured that it should settle, compromise, pay or contest the claim.

81 They were substantially .increased by amendments to sec. 7 (5) in 1954. An argument could be made that prior to 1954 sec. 7 (5) did not confer any power to recover over. T h e power was limited to that which "would not have been recovered from or incurred or paid by the Trust but for" the provisions of sub-sec. 4 (which prevents forfeiture) . But were it not for sub-sec. 4 the Trust would have been required to pay under the uninsured vehicle provisions: sec. 8. The Trust in fact purported to use the power on frequent occasions. Perhaps the Court could have escaped the difficulty by implying in the old sec. 7 (5) the words "under sub-sections (1) (2) and (3) " after "recovered from or incurred or paid by the Trust." The difficulty is one of many illustrations of failure to correlate borrowings from different sources.

82 Recovery over may be against "the insured person liable": sec. 7 (5). The driver is by definition an insured person: sec. 3.

83 Recovery could only be had under the Act against an "insured person liable", though it may be that quite apart from sec. i (5) the Trust could have proceeded against the owner for breach of contract.

clearly that loss-shifting in this context is unrelated to the tort rules. I t is true that rrtribution and deterrence may be served in some cases, in particular where the warranty that has been broken relates to the safety of the vehicle or the competence of the driver;s4 but again an innocent driver may suffer. The driver of a vehicle in an unsafe or damaged condition may be subjected to loss-shifting though driving the vehicle in the unsafe or damaged condition could not be characterised as fault on his part. Prior to 1954, the guilty party might have escaped, as where he was the owner and was not vicariously liable for the acts of his driver.85 I t is conceivable that now there may be recovery over against both owner and driver where both are innocent for, while there is a brea,ch of warranty if the vehicle is driven in an unsafe condition, the unsafe condition of the vehicle may be due to a latent defect.86

The form of policy provides that where the Trust brings an action in respect of the warranty that the vehicle would not be driven by an unlicensed or intoxicated person, it is a defence that the vehicle was driven without the owner's knowledge or consent. I t would seem to follow that there is no breach of warranty justifying recovery over even against the driver if there was no knowledge or consent.87

84 The form of policy under the Western Australian Act is set out in Appendix "C".

$5 H e would most likely not then have been "an insured person liable". The breach of warranty might in some cases amount to negligence on the part of the owner, though there would be some difficulty in showing that i t is common law negligence to allow an intoxicated person or, a t any rate, an unlicensed person to drive one's car. Probably it is common law negligence to allow a car to be driven in an unsafe or damaged condition, though it would be necessary to show that the owner knew or ought to have known of the unsafe or damaged condition.

86 Of course the victim must have been able to recover so that negligence must have been shown against the owner or driver. But the negligence need not be related to the breach of warranty. Theoretically the Trust can recover over because the vehicle is shown to have had a broken tail-light, though the accident occurred in broad daylight.

87 I t might conceivably be argued that the driver was an unauthorised driver so that the Trust may recover over against the driver under sec. 15. The amendment in 1954 to sec. 20 was no doubt intended to meet the situation described in the text, but the writer doubts whether i t has done so. Sec. 20 (2) now reads:-"So long as a policy of insurance is in force . . . every owner of the vehicle in relation to which the policy was issued (whether originally a party to the policy or not) and every person who during that period drives the vehicle whether with or without the consent of the owner shall be bound by all the terms, warranties and conditions in the policy as if he had expressly agreed to them." The fact that the driver is "bound" by the owner's warranty does not make him an owner.

13. EXTENT OF TYE LIABILITY REQUIRED

TO BE COVEREI).

The policy must give cover against clamagc caused anywhere in the Commonwealth" but the cover need not be unlimited as to persons, as to amount, or as to the kind of liability covered. The reasons for the permitted limitations are not always easy to fathom.

Limitations as to person and amount. Passengers.

The policy may limit the liability of the Trust to £2,000 in respect of any claim made by or in respect of any passenger carried in the vehicle to which the policy relates and to £no,ooo in respect of all claims made by or in respect of such passenger^.^^ The first

88 Sec. 6 (1). The section was amended to require Commonwealth-wide cover in 1944; the amendment was necessary in order to make possible reciprocal arrangements as to out-of-State vehicles between Western Aus- tralia and the other States. See (1944) 114 PAUL. DEB. 1817.

89 Sec. 6 (2) (a). The New Zealand Act does not require insurance in favour of any passenger, other than a passenger carried in a motor vehicle plying for hire or used in the course of the business of carrying passengers for hire: sec. 70. The United Kingdom Act of 1930 does not require cover against liability to a passenger save where the passenger is carried for hire or reward. The Tasmanian Act has a general limit on the cover required of f2,000 in respect of each person and P0,000 in respect of each accident: sec. 64 (2) I. No cover is required in favour of a passenger save a passenger in a vehicle carrying for hire: sec. 64 (2) I1 (c). The Queensland Act requires cover against all liability without limit as to persons or amount: sec. 3 (1) , (2) and (3) . All limitations were removed in 1944--the continuing need for sec. 3 (3) is hard to see. The South Australian Act now provides (by the 1951 amendment) a limit on passenger cover of £4,000 in respect of each person but no limit on the total amount: sec. 70c (2). The Victorian Act is parallel with the Western Australian Act in limiting cover to £2,000 in respect of each passenger and f20,000 in respect of all passengers: sec. 44 (2) (a). The New South Wales Act does not limit cover either as to person or amount: sec. 10. The New Zealand Act (sec. 70 (4) (b)) does not require cover in favour of an employee; the workers' compensation remedy is considered sufficient guarantee of compensation to the victim. In the result the Act shows a lack of concern to protect against loss-shifting, for the eniployee may choose to proceed in tort. To the same effect the United Kingdom Act of 1930, sec. 36 (1) (b) (i), and the Tasmanian Act, sec. 64 (2) I1 (a). The Western Australian Act of 1943 (sec. 6 (2) (b) (ii) ) did not require the policy to cover the employee, but this provision was repealed in 1944. It could be argued that the protection now given the employer is another illustration of Parliament's purpose to protect against loss-shifting, hut perhaps the reply is open that it is sufficiently explained in terms of a policy of ensuring a more adequate compensation to the employee than the worker's compensation remedy would give him. In some cases in fact, the workers' compensation remedy available to a dependant of a deceased employee may be more generous than the action under Lord Campbell's Act. The Tasmanian Act has a unique provision in sec. 64 (2) IV which

Bill, introduced in 1938, did not contemplate cover of any person carried in any motor vehicle.90 This was probably due to an oversight in drafting. The 1943 Act did not require cover of any passenger in the vehicle to which the policy related unless the passenger was a fare-paying passenger in which case the limits of £r,ooo as to each passenger and £zo,ooo as to all passengers apply.91 The guest passenger was placed in the same position as the fare-paying passenger by an amendment in I 944.92

In most American States either by common lawQ3 or by statute the guest is precluded from recovering against the driver save where he can show gross negligence. In France Article 1384 does not apply where a passenger seeks to recover from the driver of the vehicle in which he was carried. The plaintiff must prove faultg4 unless the carriage was in pursuance of a contract in which case the terms, express or implied, of the contract apply and may result in strict liability.g5 One explanation of the Americang6 and French lawQ7 is tha,t it would be encouraging the ingrate to allow the guest to shift his loss onto his host unless the host is obviously b l a m e w ~ r t h y . ~ ~ I t is possible that the provision in our 1943 Act was inspired by a similar sentiment. If it was, then the result is to say the least curious, for

excludes from required cover "any liability in respect of bodily injury not resulting in death, except in respect of the claim of the person suffering such injury." Cover is therefore not required as against the master's or parent's action for loss of services, or the husband's action for loss of consortium. T h e defendant is, to the extent of these actions, exposed to loss-shifting.

Qo (1938) 102 PARL. DEB. 2741. al, Sec. 6 (2) (a) and sec. 6 (3) are copied from the South Australian Act,

secs. 70c (2) (a) and 70c (3) . 92 Following similar action taken in South Australia in 1943: (1944) 114

PARL. DEB. 2272. 93 In Massachusetts and in some other States which have adopted the

Massachusetts rule. On the guest statutes see Allen, A Classification of the Automobile Guest Statutes, (1952) 32 B.U.L. REV. 162. Ontario excludes liability for negligence of owner or driver in respect of injury to a guest: T h e Highway Traffic Act, sec. 47 (2) .

%-I Veuve Gasse C. Saby, [I9281 D. I. 145. 95 Esrnein, Liability in French Law for Damages Caused by Motor Vehicle

Accidents, (1953) 2 AM. J. COMP. L. 156, a t 162. 96 Nixon, Changing Rules of Liability in Automobile Accident Litigation,

(1936) 3 LAW ee CONTEMP. PROB. 466, at 490. 91 Esmein, loc. cit., at 162. 98 So explained, the American law reflects the diminished moral content of

"negligencev-at least in its relevance to the automobile accident. But the institution of liability insurance has, as in the case of intra-family claims, led to a questioning of the immunity and to endeavours to restrict it: Vest v. Kramer, (1952) 107 N.E. 2d 105; (1953) 22 FORDHAM L. REV. 212.

our common law rule which draws no distinction between guest and any other victim" is unaffected and the only result is to leave the driver exposed to loss-shifting. Some awareness of this resultlOO led to the 1944 amendment which puts fare-pa.ying passenger and guest on the same basis and so abandons the attempt to further the moral sentiment directed against the ingrate.

A more convincing justification of the 1943 provision is that it was directed against the possibility of collusion between guest and driver.lol This purpose, too, was abandoned by the 194.4 amendment.

Another suggestion is that the 194.3 provision was inspired by a theory that the guest assumes the risk of the financial irresponsibility of his driver. One could argue from this point that any victim assumes the risk of the financial irresponsibility of the driver who causes him injury and thus explain away the need for any legislation seeking to ensure compensation.lo2 But it will be said that the passenger has a chance to choose his driver. The writer would reply that it is a rare passenger who gives any thought to the financial responsibility of his driver until after the accident and this rare passenger may well assume that third-party insurance covers his possible claim. In any case this

99 See the discussion by Dixon J. in The Insurance Commissioner v. Joyce, (1948) 77 Commonwealth L.R. 39, at 56.

100 See the remarks of the Hon. N. Keenan in (1944) 114 PAUL. DER. 21 12. When the 1939 bill was before the Council the Hon. T. Moore insisted that i t was unjust that a person who picks up a passenger should be liable in damages if there is an accident and he is negligent: (1939) 104 PARL. DEB. 1847. See also the exchange between the Hon. L.B. Bolton ;in11 the Hon. J. Cornell ((1939) 104 PARL. DEB. 1848), and the statement by the Honorary Minister ((1939) 104 PARL. DEB. 1941) reading a reply by the Solicitor-General to a question addressed to him on the suojec:. The reply must have left members more confused than ever.

101 This consideration played an important part in the making of the American law which requires that gross negligence be shown: Nixon, loc. cit., at 490. The fear is of collusion directed to satisfying what the writer hereafter calls the forensic rite of fault-finding; that such fear should be felt emphasises the inappropriateness of the forensic rite. The Director of the Columbia Study considered that the passenger should be given a claim against his driver unless and until experience showed that collusion did in fact commonly result: Lewis, T h e Merits of the Automobile Accident Compensation Plan, (1936) 3 LAW & CONTEMP. PROB. 584, at 592 Where liability is strict, as under the Columbia plan, there is so much the less need for collusion.

102 The suggestion here rejected might be refurbished by asserting that the passenger should take out accident insurance if he wants to be sure of compensation beyond that available under his driver's policy. Why then ensure, as our Act does, that he has full compensation if he is injured by the fault of the driver of the other vehicle? Indeed why compel any liability insurance-the availability of accident insurance is not confined to passengers.

"assumption of risk" explanation, like the others, can hardly survive the 1944 amendment. Are we to say now that passengers, guest and fare-paying, assume the risk that the person liable may be financially irresponsible beyond £2,000 per passenger and £zo,ooo for all passengers? Does the bus passenger give thought when taking a ride on a crowded bus that in an accident involving more than £zo,ooo his share of the £zo,ooo may be only a few hundreds and the bus company be otherwise financially irresponsible?

The truth is that there is no function in the continuing limitation on cover in respect of passenger claims save reducing the burden of distributed loss, keeping premiums down to what is regarded as a "fair" level. We have seen that the cost of distributed loss is imposed directly on the owners of motor vehicles who may or may not be able, depending on whether they are commercial or private owners, to distribute more widely. The questions of how much loss ought to be distributed and what is a fair distribution are of vital importance and will be considered in the concluding part of this article. I t is sufficient to say now that there is neither rhyme nor reason iri distinguishing between loss suffered by a passenger for which his own driver is liable and loss suffered by a passenger for which the driver of another vehicle is liable.lo3

Intra-family loss.

The 1943 Act did not require that the policy should cover death or bodily injury suffered by any person who at the time of the accident was the spouse or a child or other relative being a grandchild, parent, brother or sister of the insured person.la4 The provision was repealed in 1 g 4 4 . l ~ ~

103 If it is sought to argue that the danger of collusio~l still warrants the distinction, the writer would reply that, since this is a matter of specl~lation, he is entitled to speculate that the distinction stimulates collusion between passenger and driver directed to showing that i t was the driver of the other vehicle who was at fault. Thus the passenger will get all his damages and his driver be relieved of the danger of loss-shifting as to any excess over jt2,000.

104 Sec. 6 (2) (b) (i) . 105 Following the repeal of the model provision in the South Australian Act,

sec. 70c (2) (b). The New Zealand Act does not require insurance against "any claim made in respect of the death of or of injury suffered by any person living with the owner as a member of the same family or in respect of the death of or of injury suffered by a .relative of the owner where ~ l l e degree of relationship is not more remote than the fourth": sec. 70 (4) (a) . The Tasmanian Act does not require cover against "any liability in respect of the death of or bodily injury to a person who at the time of the accident was living with the insured or with his agent as a member

One spouse may not suc mother in tort except where a wife sues for the protection or security of hrr separate property. I n the context of personal injury suflcred by a wife Curtis v . WilcoxloC no doubt offers the only illustration of the exception. Tort actions between members of a family other than husband and wife are not precluded by our law. Yet it is not easy to say what was the purpose of the 1943 provision. The reason generally offered to explain the exclusion of actions between the spouses in that such are unseemly and may destroy the harmony which should obtain between man and wife. Many American courts offer similar justification for excluding actions between parent and child.lo7 But it could hardly be said that the ideal of family life is endangered when the defendant is covered by insurance. Indeed the ideal of family life should rather lead us to abolish any immunities and then require insurance cover against intra-family claims.lo8 The risk of encouraging collusion is the only purpose of any substance justifying the 1943 provision though, it must be admitted, it may Got be quite unreal here to say that, where the victim is a passenger, he takes the risk of the financial irresponsibility of the driver.

Since I 944 the insurance policy must cover intra-family claims. But the common law tort rule excluding action between husband and wife is unaffected and the family exchequer is unprotected in the very situation where it stands most in need of protection.lo9 This is

of his family": sec. 64 (2) I11 (b). The Queensland Act requires cover in respect of intra-family claims, but the common law tort immunity of husband and wife remains; so too the New South Wales and victoria:^ Acts. The United Kingdom Acts do not exempt intra-family claims from cover but, i t will be remembered, there need not be insurance against passenger claims. In the result i t is unlikely that a passenger claim will be covered.

106 [1948] 2 K.B. 474. 107 The American rule excluding actions between parent and child seems to

have originated in a mis-reading of English law authorities: PROSSER, HANDBOOK OF THE LAW OF TORTS, 905-907.

1.08 There is some evidence that American courts are tending to forsake the intra-family immunity rules in situations where insurance cover is likely: Adanls v. Nadel, (1953) ; 124 N.Y.S. 2d 427; (1954) 29 N.Y.U.L. REV. 1302. Curtis v. Wilcox, [I9481 2 K.B. 474, is in line with this development; so also are Waugh v. Waugh, (1950) 50 State R. (N.S.W.) 210, and Broom v. Morgan, [I9531 1 Q.B. 597.

l m O Q Unless the wife (but not the husband) was injured before marriage. Curtis v. Wilcox, [I9481 2 K.B. 474, though based ostensibly on technical reasons, made protection available in this limited situation. Waugh v. Waugh, (1950) 50 State R. (N.S.W.) 210, may enable a spouse to avoid the tort immunity rule even though the other spouse caused the injury. The vehicle's insurance policy is then open.

perhaps the starkest evidence of how unbroken is the animal that Parliament has chosen to ride.

C. THE KIND OF LIABILITY REQUIRED T O BE COVERED.

The policy under the Western Australian Act must give cover against all liability for negligence which may be incurred in respect of the death of or bodily injuryl10 to any person caused by or arising out of the use of the vehicle.lll There is room here for some intriguing reflection. The provision effectively excludes from protection under the Act any injury which may not successfully be sued for under the present rules relating to the tort of negligence. Should our judges decide to follow in the steps of their French brethren and develop a doctrine of strict liability, they will not find in this Act any avenue for loss-distribution. "Negligence" is of course the basis of budgeting for the cost of loss-distribution and n o doubt it is reasonable to protect the budget against any judicial enthusiasms; but there is something grotesque in insisting that the tort rules must never submit to Parliament's intentions.l12

Is it entirely an academic question to ask whether the policy under the Act covers wilful wrongdoing? Let us assume that, perhaps in a fit of temper, one driver deliberately drives his car into another. NO doubt it could be argued that intent includes negligence. But the judgment of Bailhache J. in Tinline v. White Cross Insurance113 suggests that liability insurance against damage caused by wilful wrongdoing is contrary to public policy.l14 If the policy does not cover wilful wrongdoing, the victim may be unable to claim compensation. The uninsured vehicle provisions protect only where the liability would be covered if there were a policy of insurance under the Act.l16

110 Cf. the unique provision in the Tasmanian Act, sec. 64 (2) IV, noted supra at 223, note 89.

111 Sec. 6 (1) (b), following the South Australian Act, sec. 'iOc (1). 11.2 The Western Australian and South Australian Acts are unique in this

respect. The United Kingdom Act of 1930 requires insurance against "any liability which may be incurred in respect of the death of or bodily injury to any person caused by or arising out of the use of a vehicle on a road": sec. 36 (1) (d). The critical words in the New Zealand Act are "liability to pay damages" (sec. 70); in the Queensland Act, "legally liable by way of damages" (sec. 3 (1)) ; in the Tasmanian Act, "liability incurred" (sec. 64 (3) ) ; in the Victorian Act, "liability incurred" (sec. 44) ; and in the New South Wales Act, "all liability incurred" (sec. 10).

116 [I9211 3 K.B. 327. 1M Ibid., at 332. 116 Sec. 8 (1) (b) .

Perhaps a courageous judge could reframe the public policy rule in the light of Parliament's intentions in the Act.llG The Divisional Court in Leggate u. Broze1n~l7 drew a distinction, which the couragcous judge might find useful, between insuring against a claim for damages and insuring against the criminal penalty for the act.lls

The effect of recent decisions on nuisance is that there can be no liability in the context of harm caused by a motor vehicle on the highway in the absence of negligence.llQ The .policy no doubt is available should the plaintiff choose to frame his action in nuisance. And the words of the policy are wide enough to cover a claim for contribution.120 The words "caused by or arising out of the use of ' the motor vehicle probably extend cover beyond injuries caused by the driving of the motor vehicle. Similar words in the New Zealand Act have been interpreted1"' to extend cover to damage caused by cargo falling from a vehicle while it was being driven.

D. THE SELECTION O F LOSSES T O BE COMPENSATED:

THE INCIDENCE OF THE COST OF COMPENSATION.

The selection of losses involving personal injury or death for which the Western Australian Act guarantees compensation depends primarily on showing an occasion of tort liability which the Act requires to be covered by insurance. Provided tort liability can be shown and the liability is such that the Act requires that it be covered by insurance, only procedural hurdles stand in the way of the victim who seeks to make the guarantee of compensation effective. Whether or not there is insurance in fact is relevant only to these procedural hurdles and to the question of the final incidence of the loss; whether it is to be dissipated by loss-distribution or whether it is to be withdrawn from distribution and shifted to another individual. I t is proposed to consider in turn, with emphasis on function, ( i ) the victim's need to show tort liability, and (ii) the relation between insurance and ( a ) the compensation of the victim

116 Glanville Williams, in The Aims of the Law of Torts, (1951) 4 CURRENT LELAL PROBLEMS at 167, doubts whether any English judge would go so far.

117 [I9501 2 All E.R. 564. The simplest way out of the difficulty of course is to patch the Act by requiring policy cover of damage caused by intentional wrongdoing, and to provide for recovery over by the Trust against a wilful wrongdoer.

119 Maitland v. Raisbeck, [I9441 K.B. 689. 120 The New Zealand Act, sec. 70 ( 5 ) , as amended in 1949, expressly extends

insurance cover to claims for contribution. 121 A.P.A. Union Assurance Society v. Ritchie, etc. Ltd., [1937] N.Z.L.R. 414.

and (b ) the final incidence, where the victim is compensated, of the cost of compensation.

(i) The need to show tort liability. The writer has already stated his conviction that tort liability

as a basis of selection is a t odds with Parliament's intentions. The tort rules arc concerned with fault-finding and endeavouring to ensure that fault and loss shall lie together so that moral retribution and deterrencc may be served. Where there is no fault the tort rules find no reason to interfere. I t is proposed now to attempt to gauge the function of tort rules as they operate in the frame of the Act.

T h e fault of the insurer.

Fault-finding is a highly skilled craft that consumes hungrily of intellectual and emotional energies of counsel, clients, witnesses, and judges. Whether a t the end they find truth is in most cases beyond reviewing, for mercifully we have excluded further searches save in those cases where they have obviously missed the truth, when they will be given thr chancr to miss it again.

Where the accident involves collision between vehicles, or where a vehicle overturns or runs into a stationary object, there will be physical damage to the vehicle and indications on the roadway from which, by backward working, we may reconstruct some picture of what happened. All collision122 accidents are investigated by the police with some care. Statements will be taken from persons involved and perhaps from independent witnesses.123 But evaluation of the events as they have been reconstructed is still necessary. I n collision cases, it is true, we tend, and judges tend, to assume that someone was at fault and, except for the driver or drivers, the recovery of some compensation is probable. But "latent defect" may shipwreck the

122 The words "collision accidents" are here used to refer to accidents of the kinds mentioned in the preceding sentence in the text. The wortls "running- down accidents" refer to accidents which involve a motor vehicle striking a pedestrian or a push cyclist.

123 How unreliable is human memory of events which have involved only a moment of time is well enough known to law students who have performed the standard exercise of giving evidence of staged events. Yet a case may turn on what memory can recall months after the events. Judges sometimes tend to prefer statements made by witnesses immediately after the events to the police or an investigator but, especially where the statement was made by one who was involved in the accident, it may simply say what the policeman or investigator thought or wanted to think is what happened. The Carlisle Magistrates Court has introduced a blackboard ruled to scale and magnetic toy cars to aid witnesses in describing traffic accidents: (1954) 88 IRISH L.T. 96. No doubt there will be times when the magistrates

will be reminded of the ancient game of tailing the donkey.

claim and the onus of proof, most often without benefit of res ipsa loquitur, rests with the plaintiff. Law students are soon brought to an understanding of the inevitable subjective element in the assessment of what the reasonable man would have done. But the "reasonable man" is a horse and buggy concept. Our hindsight of how he would have behaved is gained from the comfort of the office chair, the bench or the jury box. Yet the events may in fact have occupied only a matter of ~ e c 0 n d s . l ~ ~ Prediction of the judicial evalua-tion by counsel is an art which requires as much knowledge of the judge as of the matters that he will have before him.lZ5 In a community where there

124 Most drivers are lucky most of the time in that inevitable moments of inattention do not happen to coincide with dangerous situations. Inatten- tion is the principal cause of accidents for which motor vehicle drivers are responsible. A significant extract from the Road Traffic Accident Statistics, 1954, published by the Western Australian Government Statis- tician's office, is printed as Appendix "A".

125 Juries were uncommon in Western Australia in motor vehicle accident cases before the Act and now jury trial is unavailable: sec. 16. Before the Act, the cost of jury trial and the perverseness of juries as in Krasnostein v. Atlas, (1936) 38 West. Aust. L.R. 99, seem to have put them out of favour with counsel. Krasnostein v. Atlas was a Lord Campbell's action where the husband of the plaintiff was killed while a passenger in a vehicle. The jury found no negligence on the driver's part. A judge would probably have found for the plaintiff; in dismissing an appeal, Northmore C.J. said: "I might add that I was the trial judge, and if I had had to decide on the evidence before me I should have found for the plaintiff." It should be remembered, too, that before the Act liability insurance was voluntary. It was estimated in 1938 (see (1938) 102 .PARL. DEB. 2738) that only 50% of motorists were covered. In most cases the question was one, not of loss-distribution, but of loss-shifting, and juries could be expected to insist on a high degree of culpability. If juries were now used, doubtless they would be as ready as they are in New South Wales and Victoria to ignore the absence of culpability in the interest of compensation of victims. Judge-trial of law and fact in Western Aus- tralia has kept alive some element of culpability in the test of liability; it has nourished the tort rules. James, Functions of Judge and Jury in Negligence Cases, (1949) 58 YALE L.J. 667, draws attention to the fact that in America the great majority of jury verdicts are in favour of plaintiffs in accident cases and suggests that the jury is ahead of the law in what is a period of transition from older notions based on individual blame towards some form of social insurance. He describes the jury's functions as "catalytic" in hastening legal change. It is true that the judge's power to withdraw a case from the jury achieves some survival of tort rules even in judge-jury trial, but this control is limited; it is said that the primary objective of defence counsel in American courts is to have the case taken away from the jury by asserting breach by the plaintiff of a specific rule such as stop-look-and-listen and range-of-vision rules. But the judge tends to leave it to the jury: Nixon, loc. cit., at 478-9; James, loc. cit., 688-9. Grad, Recent Developments in Automobile Accident Compensation, (1950) 50 COLUM. L. REV. 316, suggests that in America compulsory liability insurance is coming to be thought of as compulsory automobile compensation insurance.

is a numerically small bench the degree of culpability which plaintiffs must be prepared to make out tends to be that required by the judge who has the keenest regard for the tort rules.

I t is in the running down case that the hazards which plaintiffs must face become forbidding. The bystander is not always ready to offer his story. Is there any one of us who has not avoided being "caught" to give evidence? Appearance in court not only involves economic loss to the witness but it is an emotional experience which anyone will wish to avoid. The emotional experience may sometimes be made more gruelling by counsel's cross-examination or by the impatience of the judge. Press reporting of the case may show the witness in an undeservedly bad light and result at least in ridicule, perhaps in a real loss of reputation. In any event those who have seen a running down do not wait around to be interviewed. The normal human reaction is to get away as quickly as possible. The victim of the accident may be silent in death, or, if he lives, he may be unable to recall any of the events surrounding the accident. Head injuries are common and are frequently followed by anterograde amnesia. The reconstruction of the accident from the position of the car and of the victim's person is most often impossible. The driver will have gone on some distance and parked his car. There may be no marks apparent on the vehicle. Even if there are marks indicating the use of brakes, the point of impact may yet be unknown, for the victim's person will have been carried away for medical attention. Police investigation of the running down case tends to be much less adequate than in a collision case. In many instances no plan of the scene is made. The fault is not necessarily that of the police officer; the very nature of the accident makes reconstruction a difficult task. But unless there is adequate police evidence, the pedestrian may have no evidence at all, and the onus of proof is on him.126

The special hazards in the way of a plaintiff driver or pedestrian who may be met by a defence of contributory negligence will be considered in a moment. The question now is, what purpose is served by the forensic rite of fault-finding when directed to the defendant's conduct? One purpose is clear enough: I t defeats plaintiffs in court and deters plaintiffs out of court and thus protects the Motor Vehicle Insurance Fund. I t limits the burden of distributed loss. This, in

12% He may be able to make some sort of a case from answers to interroga- tories. Theoretically he could call the defendant, but this is unlikely to help. Where the pedestrian is dead and action is contemplated by the dependants the prospects are indeed dim; on American attempts to assist the dependants in this situation, see i n f ~ a , at 263, note 226.

itself, may be a sound purpose. The present area, of distribution may place an unfair burden on motor vehicle owners. But if there is unfairness, there are obvious remedies. The area of distribution may be widened or the manner of assessment of claims may be changed.lZ7 The provisions of the Act preclude any possibility that the forensic rite might serve deterrence.128 The suggestion that drivers axe induced to be careful because more occasions of fault would increase liability insurance premiums is without substance. If there is a correlation between fault and accidents, care will keep down the number of accidents for which motorists could be liable on any principle of liability. Case will keep down premiums whether fault is or is not relevant to liability. I t is intriguing how the fiction of deterrence by loss-shifting is religiously preserved in the context of loss-distribution. The solemn use of the insured's name in court and the fostering of the fiction by press reports that "Driver of Car Ordered to Pay 210,ooo Damages" may some day provide antiquarians with the same delight that some of us find now in the mysteries of fictions in Roman Law.12g Moral retribution is equally irrelevant to the forensic rite unless we assert that a collective retribution is served. I t might be said that vehicle owners pay collectively for the sin of any one of them, or of anyone who happens to drive one of their vehicles, and that the expression of moral sentiment involved would be lost if we made vehicle owners pay for what was not a sin at all. Distributed retribution is a strange moral idea. I t is not the "blood feud" of primitive society, for there each member of the group was liable to suffer not a share of but total retribution. Really this is an attempt to have it both ways. Either liability for motor vehicle accidents is amoral in which case there is no objection to loss-distribution. Indeed, the writer would

127 Questions of the area of distribution and the means of assessment of loss are considered infra at 274-282.

12s Fault-finding against the motor vehicle owner or driver could be made the basis of recovery over by the Trust of money which, irrespective of fault, the Trust had paid out to compensate the victim. In fact, of course, the Trust pays out nothing unless there is fault and there is no recovery over against the owner or driver because of any finding of fault. We have seen, supra at 220-222, that there may be recovery over where there has been a breach of a warranty in the owner's policy which might involve culpable conduct by owner or driver, but this recovery over is quite unrelated to the purposes of the tort rules. I t has to do with the relation between the insured and the insurer. The possibility of using the technique of recovery over so as to serve the tort rule purposes of retribution and deterrence is considered in the concluding part of this article.

129 One can imagine how the antiquarian will prize the choice morsel provided by the words of Finnemore J. in Semtex, Ltd. v. Gladstone, [l9541 2 All E.R. 206, a t 209, 212, quoted supra at 205, n. 18.

agreelsO that there is no objection to spreading liability beyond those whose acts have resulted in the injuries. Or the liability is moral, in which case we should insist on individual responsibility. Those sections of the Act which endeavour to ensure protection against loss-shifting must then be regarded as misconceived. It is double-talk at one moment to insist on the amorality of liability to justify the distribution of loss and the next moment to insist that liability involves sin so that retribution should not be visited on the innocent.

But we have only been skirmishing. The vital question remains: What is the purpose of the forensic rite of fault-finding as the means of selecting losses for compensation by loss-distribution? Even if fault- finding is relevant to the question of how much motorists should collectively have to pay, what conceivable relevance has it in determining the allocation of the monies they have collectively paid? How is the case of Mrs. X. who was knocked down by a motor vehicle whose driver was negligent to be distinguished from that of Mrs. Y. who was knocked down by a motor vehicle whose steering suddenly failed due to a latent defect? Are we to say that Mrs. Y.'s misfortune was the will of the Almighty and we should not interfere? If so, why interfere in Mrs. X.'s case, for surely the Almighty can express His will through negligent drivers as well as defective steering gears.

T h e fault of the injured.

Comment on difficulty of proof, made in dealing with the fault of the injurer, is equally appropriate here. But there is a vital difference between evaluating the injurer's conduct and evaluating the injured's conduct. A relaxing of the standard of fault in the first case favours compensation. A relaxing of the standard in the second case tends to defeat compensation.

Apportionment of damages in cases of contributory negligence was introduced in Western Australia by the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947. I t involves a refinement in fault-liability in the context of loss-shifting; it is intriguing that its principal application has been in a context of loss- distribution.'" There are no statistics which can be referred to, but the opinion might fairly be expressed that the Act of 1947 has favoured insurers at least in the field of compensation to victims of

130 See infra at 274-275. 13% The example of apportionment was offered by a number of civil law

systems. But in the context of motor vehicle accidents France, as we have seen, had already abandoned it. And see LAWSON. NECLICFNCE IN THE CIVIL LAW, at 53-9.

motor vehicle accidents. When the penalty for contributory negligence was total defeat of a claim, juries and judges were ready, either by the last-opportunity rule or a certain obstinacy about appreciating the defendant's submission, to give judgment for the victim. But since the Act of 1947 our judges have taken enthusiastically to the new art of fault-balancing. I t may even be doubted, in the result, whether more victims recover than before. Of those who recover, almost all recover less than they would have recovered before and, it will be seen, there has been a worsening of the lot of one class-pedestrians-which, one would have thought, Parliament intended a,bove all others to protect.

The art of fault-balancing, as it is practised by our judges, knows no different measure of plaintiff's fault from that which has been applied to the defendant. If "sound principle" and a, minimum of concepts are equated, then no doubt the judge's art is founded on "sound principle." But is it not strange that the same concept used in one place serves to favour compensation yet in another it serves to defeat that object? The result might be sound enough were the problem one of balancing faults in order to achieve a, just distribution of penalties,132 but in the context of personal injury caused by the motor vehicle there is no question of distributing penalties, there is only the question of what penalty is to be visited on the plaintiff. We have taken care to see that none shall be visited on the defendant.

The recent case of Jones v. Staueley Iron and Chemical Co. Ltd.133 confirms an important distinction, in the situation where an employee seeks to recover at common law from his employer, between the standard of care required of the injurer and that required of the injured. A high standard is asked of the injurer (the fault-requirement of liability is low) but a much lower standard is asked of the injured (the fault-requirement to limit or defeat liability is high). Hodson and Romer L.JJ. gave judgment in terms which, though they do not preclude it, do not warrant extending the distinction beyond the employer-employee relation. But the judgment of Denning L.J. puts the distinction on a ground which admits of general application. He said:-"The difference lies in this; negligence is founded on a breach of duty, whereas contributory negligence is not."134 His judgment

132 Even then, while the balance may be just, the penalties may bear no relation to the wrong. The crudity of a punishment which knows no other measure than the damage which happens to have been caused is for the student the prime curiosity of the law of tort.

133 [1955] 2 W.L.R. 69. 134 Ibid., a t 72. Juries are uninhibited by the need to find doctrinal justifica-

tion, but appeal courts may have to put them 'right': Black v. Zagame,

offers a doctrinal justification for a new approach by our Courts to the question of the fault of the injured should the Courts wish to take it.

The fault of the injured driver.

Wherc only one vehicle is involved in an accident, the injured driver will almost certainly go uncompensated. If he is not also the owner, the owner's policy ma,y be open to him in the situation where the accident was due to a defect in the vehicle of which the owner was or ought to have been aware. Beyond this situation the Act does not assist the driver. Rarely may he succeed in obtaining compensation, independently of the Act, from some person other than the owner whose negligence has caused the accident.13Where liability is the basis of compensation the driver of the single vehicle will always be at a disadvantage. Even if we dispense with fault-finding and follow the French rule of strict liability his lot will not be improved. I t will be submitted in the concluding part of this article that where our purpose is compensation of the victim, even strict liability is inadequate.

Where more than one vehicle is involved, fault-finding and fault-balancing determine the degree of compensation which the drivers may severally obtain. In many cases the outcome will turn on a nice question of interpretaiion of some provision in the regulations136 under the Traffic Act. I t no doubt is a stimulating intellectual exer- rise, where there has been an intersection accident, to consider the adjustment of the rule as to right-of-way and the rule requiring care. Fault-balancing doubtless is a high art, but laymen might be forgiven for mistaking it for a lottery.

[I9531 Victorian L.R. 200. Sometimes juries may be induced by the judge's lecture on sound principle to find some contributory neglignce where the judge would have found none: Saarinen v. Clay, [1954] Argus L.R. 727, where Dean J. said: "The jury, to my surprise, held that he was responsible as to 318 of his own fatal injury." Perhaps the jurymen had in mind to make their verdict invulnerable in the appeal courts.

- -

135 Curtis v. Robinson and Corica (Supreme Court of Western Australia, August 1953, unreported) shows that the driver might be able to shift his loss to a pedestrian. Save where the driver is a motor cyclist (as he was in that case), there is little risk that the driver will come off second best in an encounter with a pedestrian, but it is nonetheless strange that the rituals of fault-finding and fault-balancing may punish the pedestrian both by denying him 'compensation and by shifting to him another's loss.

136 The unreality of the forensic rites is all the more evident when it is remembered that the regulations must be proved. The judge has no judicial knowledge of them.

The fault of the injured passenger.

I t is a strange irony that though the first legislative proposal gave no protection to the passenger, he now enjoys the greatest protection of any road user. This is not to say of course that he is guaranteed compensation. Where the only vehicle involved is that in which he rides, it may be tha,t he will be defeated by the onus of proving the fault of his driver, and, in any event, the compensation in this situation available to the passenger under the Act is limited.137 But where more than one vehicle is involved, the passenger's chances of searching out some fault are doubled and if he is able to show that even a little of the fault was that of the driver of the other vehicle, compensation under the Act covers all his loss.138 The demise of the tort doctrine of identification has meant a great deal to the passenger victim.

Fault-balancing as between plaintiff and defendant rarely arises where the victim was a passenger. The passenger may be defeated, wholly or in part, by the defences volenti non fit injuria and contributory negligence, as where he rides in a vehicle knowing that it is in an unsafe condition or that its driver is incompetent. In an extreme case, such as Insurance Commissioner v. JoycemQ or Roggenkamp v. Bennett,I4O there may be some justice in this result. But the way to handle the extreme case is by special provision, not by dragging all the rest along with it.'141 There is, moreover, at least an apparent inconsistency between the availability of these defences against the passenger and the provision of the Western Australian Act which precludes the passenger from contracting out of his right to claim damages for n e g l i g e n ~ e . ~ , ~ ~ No doubt there is a nice distinction between

137 £2,000 in respect of each passenger and E20,000 in respect of all passengers in the same vehicle: see supra at 223-224.

138 The insurer will often no doubt be very happy to be able to show that i t was the driver of the vehicle in which the passenger was riding who was wholly at fault. The passenger and his driver may be the only victims of the accident and the maximum pay-out by the insurer would then be only f2,000. If it was the other driver who was at fault, the accident may be expensive for the insurer. Happily no doubt for their eternal souls, passengers and drivers are ignorant of the significance of the forensic rites until after they have made statements which prevent their weighting their stories so that the balance will tip to their greatest advantage.

139 Insurance Commissioner v. Joyce, (1948) 77 Comtnonwealth L.R. 39. 140 Roggenkamp v. Bennett, (1950) 80 Commonwealth L.R. 292.

The question of providing for the extreme case is discussed infra a t 284-285. 142 Sec. 26, which adopts sec. 70p of the South Australian Act. Cf. lVe;v

Zealand Act, sec. 75 (limited to passenger for hire) ; Victorian Act, sec. 63 (limited to passenger for reward) ; Tasmanian Act, sec. 71 (limited to passengers for hire or reward) ; New South Wales Act, sec. 19 (limited to passengers in a public motor vehicle) . The United Kingdom . Ids do not require any insurance in favour of passengers and there i? no

relieving a defendant of his duty to take care-the accepted explanation of the assumption-of-risk situation-and relieving him of his obligation to pay damages for breach of that duty; but it is hard to see that any policy could turn on the di~t inct i0n. l~~

Where the passenger does assume the risk of injury caused by a defective vehicle or an incompetent driver, he may not only preclude himself from obtaining compensation but as well expose himself to loss-shifting. Where a third person is injured it is probable that the passenger who assumed the risk will be regarded as a joint tortfeasor with the driver.'** The victim may see fit to make the passenger a defendant, and the passenger is not covered by the p01icy.l~~ Either the Trust, or the driver who has been made to pay, can probably obtain contribution from the passenger.146

The fault of the injured pedest7ian.l47

The first legislative proposal was concerned only with ensuring compensation to the injured pedestrian. Yeb the protection which the Act gives the pedestrian has come to be sternly limited. I t is difficult enough, we have seen, for the pedestrian to pass the hazard of proving the driver's fault, but there remains the evengeater hazard of having to rebut the almost inevitable defence of contributory negligence. An admission of liability by the insurer is in practice confined to cases of a pedestrian hit on the footpath by a car mounting the footpath,

provision similar to sec. 6. The policy under the Queensland Act co\ers passengers but there is no provision prohibiting contracting out: See Jones v. Aircraft Pty. Ltd., [I9491 Queensland S.R. 196, where a contract excluding liability was held not to be void as against public policy

143 Perhaps a reconciliation may be made by remembering that pressure short of duress (save in the situation, here irrelevant, of undue influence) does not invalidate a contract, but pressure on the victim to ride in a vehicle (which would include economic pressure, for example on the bus passenger) may be very relevant to the defences of volenti non f it injuria or contributory negligence. See Dann v. Hamilton, [I9391 1 K.B. 509, and Insurance Commissioner v. Joyce, (1948) 77 Commonwealth L.R. 39. Marshall v. Batchelor, (1949) 51 West. Aust. L.R. 250, seems to have proceeded on a misconception of the "common purpose" necessary to make persons joint tort-feasors. Surely it was sufficient in that case that there was a "common purpose" to ride a vehicle without a light.

145 The driver will most likely also be unprotected. There will probably have been a breach of warranty in the policy and the insurer will be able to recover over under sec. 7 (5). But see the discussion supra at 220.

Me Under the Law Reform (Contributory Negligence and Tortfeasors' Con- tribution) Act 1947, sec. 7; cf. Pennell v. O'Callaghan, [I9541 Argus L.R. 747. Where the passenger is vicariously liable for the acts of the driver he may be protected by sec. 22 (discussed supra at 219-220.).

147 No special attention has been given to the push cyclist or the lad on the scooter but their situations are parallel to that of the pedestrian.

a pedestrian hit by a car travelling on the wrong side of the road, a pedestrian hit while walking on the edge of a clear road in daylight, and a pedestrian hit while clearly within a marked cro~swalk. '~~ In other cases the pedestrian's prospects of recovery improve the nearer he has got to the lar side of the road before he is hit. But his chances of full recovery of damages are never bright. The regulation that a pedestrian must give way is, it is true, qualified so that it does not excuse the driver of a vehicle from using care. But it offers a useful weapon against the pedestrian's claim.149 Breach of the regulation requiring the pedestrian to walk on the right-hand side of the road where there is no footpath may be fatal to his claim, although something may be saved if lighting and weather conditions were good and there was no vehicle approaching from the opposite direction at the moment of the accident. The pedestrian who walks on the right-hand side is not of course guaranteed recovery. There is a nice question of just how far into the ditch he is expected to get in order to avoid an approaching car. It is of course significant of the moral barrenness of fault-balancing that resort is had to rules which establish what are only mala quia prohibita.160 I t is a rare pedestrian victim who has my clear recollection of the events immediately before he was hit. There may be an absence of recollection due to anterograde amnesia in which case he can offer no evidence to rebut the driver's story; but hazy recollection suggests the inference that he was not keeping a proper lookout. If he has a clear recollection and says he did not see the vehicle the inference is even stronger that he was not keeping

148 Even in these cases the insurer is unlikely to make an admission until pressed. Contributory negligence may yet be found against the pedestrian: see for example, Baird v. Millard, [1954] 2 D.L.R. 287 (pedestrian on crosswalk held 25y0 to blame because she looked only one way). The insurer's bargaining power is discussed infra at 260-264.

1149 The weapon does not, it should be noted, receive the same approval from all the judges. The Full Court in Curtis v. Robinson and Corica (see note 135, supra) did not express an opinion on its value.

160 The House of Lords in National Coal Board v. England, [1954] 2 W.L.R. 400, [I9541 1 All E.R. 546, was unwilling to attach any necessary significance to the fact that the plaintiff's conduct was in breach of a statutory duty. Their Lordships flatly rejected a suggestion that the plaintiff should be defeated by the defence ex turpi causa and, though they held him 25y0 to blame, this was because they considered that he had in fact failed to take care. The case also shows differing standards of care required of plaintiff and defendant. Differing standards, we have seen, were adopted by the Court of Appeal in Jones v. Staveley Iron and Chemical Co. Ltd, [1955] 2 W.L.R. 69. The Lords may not have been conscious of the implications of what they were doing. The effect of their judgments was commented on by Glanville Williams in (1954) 17 MODERN L. REV. 365; his comment may have inspired the trial judge's decision in Staveley.

a proper lookout. And if he has a clear rccollection of seeing the vehicle, why did he not give way? The writer has found it impossible to obtain any official statistics on recovery by pedestrians. But an estimate that more than half of pedestrian victims who consult solicitors recover nothing seems warranted. Of those who recover something the majority receive only a percentage of their loss.

Fault-balancing like fault-finding limits the burden of distributed loss. It is important to consider whether it has any other valid function, for there are more appropriate ways of protecting the budget.

Since the plaintiff must, to the extent of his defeat, suffer the loss himself there is room for the suggestion that defeat serves the purposes of deterrence and retribution. I t is true that final demonstration of the futility as a deterrent of denying compensation is impossible, but a moment's critical reflection will go far to convince that we tend to make some glib assumptions. A pedestrian may look both ways because he is afraid of being hurt. But is his caution likely to be reinforced if we tell him that if he does not look both ways and is in fact hurt in consequence, he will not receive any compensation? If fear of physical hurt does not deter, fear of uncompensated physical hurt will not deter.151 Possible economic loss may be a significant control on human conduct whenever activity is planned in terms of economic advantage or disadvantage-a man doubtless gives thought to the cost of breaking a contract. But it is too much to ask us to believe that the pedestrian on the pavement makes an assessment of the economically most advantageous way of being an accident victim, and conducts himself accordingly. What is true of the pedestrian is equally true of the driver and passenger. Armchair assertions are common enough that third- party insurance has caused accidents by removing the deterrent of

151 T h e reader is asked to consider for a moment the following passage from the judgment of Napier C.J. in Farrant v. Maczkowiack, [I9531 South Aust. L.R. 345, at 349: " (The Magistrate's view) seems to me to ignore what i c I i m a g i n e t h e generally accepted view, namely, that children who have to use the streets and roads in these days of fast moving traffic, can and must be made to realise the danger of acting as this child acted. The learned Magistrate was prepared to hold that, on the particular occasion, no untoward consequences need have resulted if the defendant had acted as he should have acted. But this is not the point. I t seems to me that we cannot say that the conduct of the child was consistent with a due regard for her own safety, unless we are prepared to say that no child of that age ought to be allowed to be in a public street or road, unless i t is, as it were, on a leash." T h e child's negligence, the Court held, was the real cause of the accident and judgment in the Local Court was set aside. The child was a girl aged 7 who, in playing with other children on her way home from school, had moved in front of the defendant's truck. As it happened she was killed and was thus unable to profit from the lesson his honour sought to teach her.

loss-shifting. In fact there is no evidence to support these assertions. Comparison with other American Sta,tes does not show any greater incidence of accidents in Massachusetts, the only State with compulsory third-party insurance.15Vf a man is not made more reckless by knowledge that he will not have to pay for the damage he has caused to others, is he likely to be made more reckless by knowledge that he will not have to pay for the damage he has caused to himself? If there is any forethought of consequences, it is forethought only of physical consequences. No man wants to feel responsible for injury or death suffered by another even though he knows that that other or his dependants will receive money compensation. No man wants to be made an invalid even though he knows he will receive money compensation.

I t might be thought that it is sufficient rebuttal of the writer's submissions that they would involve the conclusion that all fines for traffic offences are futile. But the fine is attached to a precisely defined153 kind of conduct in the use of the road and, in addition to the economic disadvantage of being fined, there is the stigma of conviction. The penalty suffered by the uncompensa,ted victim is contingent on his being a victim and the economic disadvantage is not attended by any stigma.

152 McNiece and Thornton, Automobile Accident Prevention and Compensation, (1952) 27 N.Y.U.L. REV. 585, a t 604. I t is true that con~parison becomes

less significant as increasingly effective "financial responsibility laws" in other States come near to compelling insurance: Grad, Recent Develop- ments in Automobile Accident Compensation, (1950) 50 COLUM. L. REV. 300, at 315-6. SHULMAN and JAMES, CASES AND MATERIALS ON TORTS, (1942) at 708, quote the following table and comment from the Columbia Report: Increases i n Fatalities:

Mass. Conn. R.I. Penna. 1925 743 349 139 1576 1926 687 326" 112 1534 1927 682 337 123" 1860 1928 722 433 145 1882 1929 772 44 1 128 2159 1930 799 396 106 2424 * Indicates the enactment of a financial responsibility law or, in Massa- chusetts, of a compulsory liability insurance law. If one is to accept the fatality rate in Massachusetts as evidence of the bad effects of the compulsory liability law one must on similar evidence condemn the financial responsibility law in cohnecticut and the lack of either law in Pennsylvania. (See also Blanchard, Compulsory Insurance i n Massachusetts, (1936) 3 LAW & CONTEMP. PROB. 537).

153 The writer would submit that the criminal penalty is likely to diminish in effectiveness as the description of the offence becomes less determinate: see infra at 284.

It remains to dispose of the suggestion that denying compensation to the victim is proper because its denial serves a sentiment of retribution. Maybe it is not enough to say that we do not exact retribution from those who cause injury to others, though it is at least strange that Parliament should have been concerned to protect from retribution those who cause inju~y to others and yet have intended that those who cause injury to themselves should suffer retribution. And maybe it is not enough to raise the objection that the amount of retribution is not related to the blame to be attributed to the victim- it is fortuitously determined by the amount of harm suffered. But surely there is no room for retribution unless the victim's conduct can be shown to be morally evil. The moral barrenness of contributory negligence in the context of the motor vehicle accident has already been sufficiently demonstrated.

Exceptions to the regimen of fault.

There are two exceptional and very limited situations where the forensic rites are wholly or partly irrelevant in the selection of losses to be compensated.

Where a doctor or nurse renders emergency treatment to an accident victim or some person conveys the victim in his vehicle, the Trust is required to make certain payments to the doctor, nurse or person treating or conveying the victim. Written notice of claim must be made, but payment is independent of any power in the victim to recover damages in respect of his injuries.lM The object of the provision is clear enough. The Trust has an interest, in cases where there is tort liability, that the victim's injuries should be mitigated by immediate medical attention. While it does not matter to the Trust whether the injuries are mitigated or not in cases where there is no tort liability, the doctor, nurse, or driver who needs to be induced

lw Sec. 12. Secs. 16 and 17 of the United Kingdom Act of 1934 make similar provision for emergency treatment by a registered medical practitioner, either privately or in a hospital. The obligation to pay is independent of any fault and is cast upon the person using the vehicle. He is in turn entitled to be indemnified by his insurer. The Victorian Act. sec. 58, requires that some payment must be made by the insurer under the insurance policy, whether or not with an admission of liability, before the insurer is required to pay for emergency treatment by doctor, nurse or chemist, or for emergency conveyance. To this extent, payment for emergency treatment is linked to the forensic rites. Cf. the Western Australian provision with respect to payments to a hospital for treatment of the victim, infra at 243-244. The South Australian Act, sec. 70g, (from which much of the wording of our section is taken), also requires that there must have been some payment by the insurer under the insurance policy.

to attend to traffic victims will not wish to have to make nice predictions about the outcome of the forensic rites.'55

Where hospital treatment has been given to a victim, the Trust - is required to pay the hospital account (up to a specified maximum) if it has made any payment in consequence of insurance under the Act in respect of the injury suffered by the victim;156 this applies whether the Trust has admitted or denied liability. Payment to the hospital is thus linked to the forensic rites. The reason for the difference between the emergency treatment and hospital treatment provisions is not easily shown; apparently it is assumed that hospitals

155 Nor to ascertain whether the person who might he liable was or was not insured-thus the payment is not dependent on the vehicle being insured. See the opinion of the Crown Solicitor quoted by the Honorary Minister during debate on the 1939 bill; the Crown Solicitor advised that

"(The Section) has a certain virtue in that doctors and nurses will have no hesitation in giving emergency treatment when required; and that must generally have the effect of minimising the insurer's liability where such liability exists.

If the section is deleted altogether, then there will not be any expectation of obtaining such emergency treatment and the insurer's liability, where such liability exists, will consequently be increased.

Since the object must be to ensure that emergency treatment will be readily obtainable I suggest that any attempt to exempt insurers from the obligation to pay for emergency treatment which the section now provides will have the effect of defeating the said object, because it will render the obtaining of emergency treatment doubtful:" (1930) 104 PARL. DEB. 1936.

166 Sec. 13. The cost to hospitals of treating accident victims who were unable to pay was one of the reasons for the Act: see (1938) 102 PARL. DEB. 2738. For the year ended 30th June 1938, the Perth Hospital treated 251 motor accident in-patient cases. The fees charged amounted to £4.471 and the fees paid totalled £797. The present section in effect gives the hospital direct access to the compensation which the Act ensures to the victim. Cf. the United Kingdom Act 1930, sec. 36 (2) ; South Aus- tralian Act, sec. 70h; Victorian Act, sec. 57. Sec. 43 of the Victorian Act makes unique provision for subsidising hospital accommodation for motor vehicle accident victims. Is. 9d. from each premium collected is placed to the credit of the Motor-Car (Hospital Payments) Fund and distributed at the end of each financial year. There is thus a limited strict liability for hospital treatment. The New South Wales Act deals with medical, dental, nursing and hospital treatment and ambulance attention, whether emergency or not, in the same section (sec. 25). Payment by the insurer or nominal defendant is dependent in all cases on some payment having been made under the insurance policy in respect of injury to the victim. Sec. 26 covers the situation (unprovided for in the Western Australian Act and the other Acts just mentioned) where the injured does not proceed, though there is "liability at law", and thus no payment is made so as to make sec. 25 available. Sec. 26 also covers the situation (also unprovided for in the Western Australian Act and in the other Acts) where there is no insurance.

do not need to be induced to treat victims. The possibility that the rffect of the provision may be to increase the burden of distributed loss, and at the same time give the victim an advantage which he would otherwise not have had, is remote, for the amount payable to the hospital cannot exceed one-fifth of the total amount paid by the Trust in respect of the injury.

Provisions for financing medical and hospital treatment may give rise to a situa.tion where there are competing schemes of loss-distribution. Adjustment of competition between schemes is considered in the concluding part of this article.

(ii) The relevance of insurance in the selection of losses to be compensated and in the determination of the incidence of the cost of compensation.

I t will be remembered that it was a belief that voluntary liability insurance substantially increased the victim's chances of receiving compensation which in part157 provoked the idea of universalising and furthering this advantage to the victim by making insurance compulsory, and by making it easier for the victim to prise open the insurance fund. This idea requires that, so far as possible, there shall never be an uninsured vehicle on the roads, for ensuring compensation and the existence of insurance are interdependent. I t leads to severe penalties on those who do not take out insurance, and to statutory continuance of policies which would otherwise end by forfeiture and the like. The United Kingdom, Queensland, Tasmanian, and South Australian Acts are all framed on this assumption of necessary inter- dependence of compensation and insurance. Our Act took over much of the South Australian Act including provisions especially determined by the assumption. But the Act, in this respect following the Victorian and New South Wales Acts, goes on to dissociate compensation and insurance by what are commonly called "uninsured vehicle provisions." Provided that the liability is such that it would be covered if there were the policy required by the Act, the absence of the policy will not defeat the victim. The result is a strange brew.158

157 The writer has Western Australian experience especially in mind in using the words "in part." The additional advantage of avoiding loss-shifting, which was in the mind of the Western Australian Parliament, was not, we have seen, equally in the minds of other Parliaments.

168 We have already been (supra at 220, n. 78 and 79) that the provisions of the South Australian Act, conceived primarily in the interest of the victim, to avoid policy forfeiture or policy termination, are transformed in function when taken over by the Western Australian Act-they now serve only to protect the owner or driver from loss-shifting.

Where there are "uninsured vehicle provisions" the compensation of the victim is not affected by the fact that a policy fails; so long as the premium has been paid the efficiency of the Act as a scheme of compensation is unimpaired.159

The compensation of the victim and the incidence of the loss.

( i ) Where there is an insurance policy. The victim who seeks compensation is faced with an immediate

procedural hazard intended to ensure that the Trust is given the maximum opportunity to exploit the forensic rites and to verify the plaintiff's injuries. The victim is precluded from bringing an action unless notice in writing has been given, "to the insured person or the Trust from whom he proposes to claim such damages", of intention to claim damages. The notice must be given as soon as practicable after the accident and the claim for dama,ges must be made within 1 2 months from the date of the accident.160 There are provisos which save the victim's claim if the insured and the Trust have not been prejudiced, or if the failure to give notice or make the claim was occasioned by mistake, absence from the Sta.te, or other reasonable cause.161

Where this procedural hazard is not successfully negotiated, and the person causing the loss was insured, the victim is not only unable to open the insurance fund but he is also unable to shift his loss to the person causing the loss. To have barred the way to the insurance fund without also barring the way to the person causing the loss would have exposed the latter to loss-shifting. Protection against loss- shifting in this context is bought at the cost of denying compensation to the victim.162

159 Thus the Commission de RBforme du Code Civil considered i t unnecessary to compel insurance so long as ways could be found to finance a fund to meet unsatisfied judgments and to answer for the hit-and-run driver: TRAVAUX 1947-1948, at 351 ff. See also infra at 249, note 176.

160 Sec. 29. Where the claim is made in respect of death, the claim must be made within 12 months from the date of death. Is an action against the Trust under sec. 7 (2) or (3) within sec. 29? Presumably so, though it is not easy to correlate the provisions for notice in sec. 7 (2) and (3) with the notice required by sec. 29.

1131 These provisos were inserted in 1944. As originally enacted, sec. 29 - defeated many claims in circumstances where no purpose was served save the defeating of the claims: (1944) 114 PARL. DEB. 2114. See now Wege v. Elphick, (1947) 49 West. Aust. L.R. 83.

162 We shall see that where the person causing the loss was uninsured he does not enjoy sec. 29 protection; the victim who would otherwise be defeated by sec. 29 may have cause to rejoice that the person causing the loss was uninsured.

The Fund behind the owner's insurance policy is directly acces- sible to the victim. The victim might otherwise be defeated by the bankruptcy,lW death, or absence of the insured, or by the fact that the insured is unknown.

Where judgment has been obtained against the insured, the amount of the judgment if unpaid may be recovered by action against the Trust, subject to policy limits as to amount. There is a proviso that, in the case of a judgment obtained within the State,lM the Trust must have known that the action in which the judgment was obtained had been commenced before it came on for hearing. The insured, being anxious to be indemnified, is unlikely to fail to carry out his duty to inform the Trust, and the victim who presses his claim to the point of litigation will nearly always be advised by a solicitor who will be aware that it is wise to give notice to the Trust. I t is then unlikely that the victim will be defeated by the proviso. None- theless, it is a concealed Until 1954 there was a significant difference between recovering from the Trust the unpaid amount of

163 I t is said that a t one time in the United States victims were defeated by collusion between insured and insurer: Grad, Recent Deuelopments in Automobile Accident Comfiensation, (1950) 50 COLUM. L. REV. 300, at 304. By an amendment in 1945, passed to facilitate reciprocal arrangements with other States, the proviso was confined to judgments obtained within the State: see (1945) 115 PARL. DEB. 503.

186 On the face of it, the victim defeated by the proviso suffers for the failure of the insured to give notice to the Trust as required by the policy and sec. 10 of the Act. Sec. 29 is satisfied if notice is given to the insured person or to the Trust. Enforcement of judgment against the insurer under the United Kingdom Act of 1934 is dependent on the insurer having had notice "before or within seven days after the commencement of the proceedings in which the judgment was given": sec. 10 (1) (2). New Zealand does not require that the insurer shall have had notice. T h e prisingopen provision, formerly sec. 10 of the New Zealand Act, is now sec. 9 of the New Zealand Law Reform Act 1936. Regulation 11 made under the Queensland Act gives the victim direct recourse against the insurer. T h e insurer will have had notice for no action can be maintained until a copy of the writ is served on the insurer and an affidavit of service filed: Regulation 9. Tasmania, by regulation under sec. 70 (5) (Gazette of 24th November 1943), allows the holder of a judgment to apply to a judge for a summons calling upon the insurer to show cause why he should not satisfy the judgment. The Victorian Act, sec. 45, provides for enforcing judgment against the insurer, and it is not necessary that the insurer shall have had notice of the action against the insured. Special provision is made for the case where the judgment debtor is bankrupt. Under the New South Wales Act, sec. 15, the court shall, subject to certain conditions, direct that the unsatisfied judgment be entered against the insurer. In Robinson v. McPherson, (1948) 48 State R. (N.S.W.) 1, it was held that no obligation was imposed by the Act on the victim to give notice to the insurer as a condition of his right to enforce against the insurer any judgment he might recover against the insured.

a judgment against an insured person and recovering from the Trust the unpaid amount of a judgment against an uninsured person. In the latter situation the victim could recover whether or not the Trust knew of the action against the uninsured person before it came on for hearing. As a result of an amendment in 1954 the victim of the uninsured vehicle has no longer a procedural advantage.la6

The victim will not be defeated because of difficulties in suing the insured arising from the fact that the insured is dead or cannot be served,167 or from the fact that the identity of the vehicle causing the accident is unknown.le8 The victim may proceed directly against

166 No doubt the explanation of the difference was simply that sec. 7 (1) was taken from the South Australian Act, sec. 70d ( l ) , while sec. 8 (the uninsured vehicle section) was taken from the Victorian Act, sec. 48. But it seems harsh that now the victim suffers because of the failure of the uninsured owner or driver to give notice to the Trust. The uninsured owner and driver will, in most cases, not have any hope of indemnity to induce him to give notice to the Trust, and the substantial penalty for failing to give notice (k100 under sec. 8 (6)) to which formerly the uninsured owner and driver were liable has been repealed. The penalty is now (under sec. 10 (4)) the same as that to which the uninsured person who fails to give notice is liable, viz., £5.

167 Sec. 7 (2), copied from the South Australian Act, sec. 70d (2) . 168 Sec. 7 (3), copied from the South Australian Act, sec. 70d ( 3 ) . may in fact

protect the victim who has been run down by an uninsured vehicle since it will be impossible to show that the vehicle was uninsured. But beyond this the South Australian Act does not cover the uninsured vehicle situation. The Western Australian Act goes on in sec. 8 to make express provision for the uninsured vehicle situation. The New Zealand Act does not make provision for any of the situations covered by sec. 7 (2) and (3), but there is protection, independently of the Act, for the hit-and-run victim under an agreement between the Minister of Transport and the insurance companies. The United Kingdom Acts do not provide for any of the situations covered by sec. 7 (2) and (3) ; the victim of the hit-and-run accident may receive an ex gratia payment from a voluntary pool established by the insurance companies. The Tasmanian Act does not make provision for any of the situations covered by sec. 7 (2) and (3) . The Queensland Act by sec. 4A, added in 1944, covers the situation where the vehicle is insured but the owner "cannot be served with process." Does this cover death of the owner? Apparently it does not cover the hit-and- run situation since the victim would not be able to show that the vehicle was insured. The Victorian Act, secs. 46 and 47, covers the sec. 7 (2) and (3) situations, except that of death of the driver. Death was covered until 1942 when provision was made generally for survival of actions and the special provision in the Victorian Act was apparently considered to be no longer necessary. At the same time the statutory policy was extended to give protection against the action now surviving (Act No. 4918, sec.3). The writer assumes, though there is no express provision, that the Western Australian policy does give protection against the action which survives under our Law Reform (Miscellaneous Provisions) Act 1941. The New South Wales Act provides for all the situations covered by sec. 7 (2) and (3), and in regard to the death and cannot-be-senred situations extends

the Trust and recover the amount of the judgment which he could have recovered against the insured person. But he must prove tha.t he gave to the Trust notice of the claim and a short statement of the grounds of the claim as soon as possible after he knew that the insured person was dead or could not be served with process, or as soon as possible after he knew that the identity of the vehicle could not be a~certained."'~ I t is strictly unnecessary to give a direct action against the Trust in the situation where the insured is dead since there would be an action against the deceased's estate.170 However, the direct - action may be more valuable since it is not subject to the time limits which apply to an action against the deceased's estate.171 Presumably the words "cannot be served" will cover the stolen-vehicle situation- where the vehicle is known but the driver is unknown. The hit-and-run situation is expressly covered.17*

protection to cases where the insurance was under the Act of a prescribed part of the Commonwealth other than New South Wales. Some interesting private international law problems follow which are beyond the scope of this article. The writer assumes that sec. 7 (2) and (3) of our Act applies only where the insurance is with the Trust-see the definition of "insured person" in sec. 3.

169 Sec. 7 (2) and (3). By an amendment in 1954 to sec. 7 (3) the victim of the hit-and-run accident must also show that he "made due search and enquiry to ascertain the identity of the vehicle." The effect of the amendment would seem to be to give the victim more time within which to give notice since apparently he must first make search and enquiry and then give notice. One would have thought that the same position obtained prior to the amendment since i t is hard to see how it could be said that a man "knew" unless he had made "due search and enquiry." But a different view was taken in Gardiner v. The Motor Vehicle Insurance Trust (in the Supreme Court of Western Australia, 16 December 1954, unreported) ; see also Millar v. Miller, [I9401 South Aust. S.R. 185, and Wox v. Club Motor Insurance, [1954] Argus L.R. 644.

170 Law Reform (Miscellaneous Provisions) Act 1941, sec. 4. Yl Zbid., sec 4 (3) . And the direct action will avoid procedural complica-

tions in a case where no representation has been taken out. However, action against the deceased's estate and enforcement of judgment against the Trust under sec. 7 (1) might be the only available course in a case where, though sec. 29 has been complied with, the victim has failed to give the special notice required by sec. 7 (2).

1'72 By sec. 7 (3). I t may seem strange that the hit-and-run situation is dealt with in the insured vehicle provisions. I t will almost certainly not be known whether the vehicle was insured or not. The victim is not asked to show that the vehicle was insured but theoretically the Trust could escape by showing, under sec. 7 (6) (c), that the vehicle was uninsured. Incidentally sec. 7 (6) (c) might defeat a victim who proceeds against the Trust under any of the other provisions of sec. 7 where the vehicle was in fact uninsured. I t is hard to see, in view of the uninsured vehicle section, how sec. 7 (6) (c) is anything but an unwarranted procedural hazard. I t is another illustration of failure to correlate sections copied from different sources.

The fact that the insured may have forfeited the protection against loss-shifting which the policy affords him does not affect the ensuring of compensation to the victim. The Trust cannot defeat an action by the victim by showing that the policy was obtained by mis-statement or non-disclosure or that the insured has committed any breach of any term, condition or warranty or that the insured has failed to comply with any condition of the policy as to what he should do or should not do after the event giving rise to liability.173 We have seen that the Trust may recover over against the "insured person."174 This device of kerping the policy on foot so as to make it available to the victim is taken from the South Australian Act. In view of the uninsured vehicle provisions it is unnecessary in the Western Australian Act.

(ii) Where there is no insurance

Under the Western Australian Act compensation of the victim a,nd the fact of insurance are generally independent of one another.176

173 Sec. 7 (4). copied from the South Australian Act, sec. 70d (4). The terms, warranties, and conditions of the policy a re determined by the Trust subject to the approval of the Minister and provided there is no formal disapproval by a special committee established by the Act: secs. 3R ( 5 ) , 31, and 32. The latter sections are discussed infra at 268-269.

1 7 4 Sec. 7 (5), discussed supra at 220-222. Sec. 7 (5) is copied fro111 the South Austrailan Act, sec. 70d (5). The United Kingdom Act of 1930, sec. 38, prevents forfeiture for breach of conditions as to things to be done or omitted after the accident. However, provisions in the policy for recovery over by the insurer against the insured are valid. There may be forfeiture, however, for breach of a condition precedent to the event and there is then an uninsured vehicle situation. Conditions precedent whose breach may involve forfeiture of the policy as against the victim are severely restricted by sec. 12 of the Act of 1934, and the time and manner in which the insurer may avoid or cancel as against the victim are closely specified in sec. 10 of the same Act; cf. New Zealand Act, sec. 73. The Tasmanian Act, sec. 65, precludes forfeiture as against the victim but there may be recovery over against the insured; to the same effect regulation 12 under the Queensland Act, and the New South Wales Act, sec. 15 ( 3 ) , (4), (5) and (6). The Victorian Act has no provisions dealing with policy forfeiture.

1'75 The need to plug the leaks by uninsured vehicle provisions may be gauged by the figures in the Report of the Commissioner of Police for the year ended 30th June 1954, at 29. Charges in the Metropolitan Area for driving a vehicle not covered by insurance numbered 473.

176 The New Zealand Act has no uninsured vehicle provisions. Compensation under the I931 agreement to a person who has been injured in a hit-and- run accident (see supra at 247, note 168) may in fact be in respect of an insured vehicle accident. The United Kingdom Acts have no uninsured vehicle provisions. By an agreement made on 17th June 1946 between the Ministry of Transport and the insurers transacting compulsory motor vehicle insurance business, the "Motor Insurers' Bureau" will,

The victim's lot is no worse because he has been injured by an uninsured vehicle than it would have been if the vehicle had been insured. The victim may recover against the Trust the unpaid amount of a judgment against the uninsured owner or driver provided that the

subject to conditions, pay compensation to a victim deprived of compensation by absence of insurance or by ineffective insurance. But the Bureau is not liable under the agreement where the liability to the victim was not such as the United Kingdom Acts require to be covered: Lees v. Motor Insurers Bureau, [I9521 2 All E.R. 511. Where there has been a hit-and-run accident the victim has no protection in law; he may, however, receive an ex gratia payment. T h e Tasmanian Act has no uninsured vehicle provisions; the victim of a hit-and-run or uninsured vehicle is unprotected. T h e chances of the uninsured vehicle situation arising are in Tasmania increased by the fact that the vehicle will be uninsured, even though there is a policy, if i t is driven by an unauthorised driver: sec. 63 (2). The South Australian Act, though it was the general model of the Western Australian Act, contains no uninsured vehicle provisions. Save where the uninsured vehicle is unidentified and the hit- and-run provision (sec. 70d (3)) applies, the victim of the uninsured vehicle accident is unprotected. T h e Victorian Act, sec. 48, has uninsured vehicle provisions which were the model for sec. 8 of our Act. T h e Victorian Act varies in one particular from the Western Australian Act, viz., the driver is denied such protection as he would otherwise have against loss-shifting if he has been convicted of driving, at the time of the accident, under the influence of intoxicating liquor. The Victorian Act also makes provision for compensation in the case of a hit-and-run accident: sec. 47. T h e New South Wales Act deals with the uninsured vehicle accident and the unidentified (hit-and-run) vehicle accident in the same section: sec. 30. T h e Massachusetts statute affords no protection to the victim of the uninsured or hit-and-run vehicle: Grad, Recent Developments in Automobile Accident Compensation, (1950) 50 COLUM. L. REV. 300, at 312. Insurance of the vehicle and availability of a defendant are irrelevant to compensation of the victim under the Saskatchewan scheme (see infra at 271, note 266). Recently France has established a fund to ensure compensation in hit-and-run and no-insurance situations. T h e fund was created by Article 15 of the loi de finances of 31 December 1951. The fund pays where the victim submits evidence that someone is responsible under the French rules of civil liability but that it is not possible to identify him, or that judgment for agreed damages (subject to review by the Court) against the person responsible is unsatisfied after demand. The fund is subrogated to the victim's rights against the person responsible. T h e fund is financed by contributions from insurance companies proportional to the premiums received by them on account of liability insurance, contributions by insured motorists of amounts determined by a percentage of premiums, and contributions by motorists liable for accidents who do not hold insurance. The fund covers only personal injuries and excludes injuries incurred by the person liable and his close relatives, or by a partner of the person liable when accompanying him for business purposes: Tunc, Establishment of "Fonds de Garantie" to Compensate Ifictims of Motor Vehicle Accidents, (1953) 2 AM. J. COMP. L. 232. The creation of the fund followed consideration by the Commission de RBforme du Code Civil: TRAVAUX, 1947-1948, at 351 ff. The Commission considered that the sound way to proceed was to establish a fund and through the manner of financing i t to put pressure on motorists to insure;

liability would have been covered if there had been an insurance policy under the Act.177 SO long as the uninsured owner or driver is available to be sued the victim is relieved of the procedural hazard of having to give the notice of claim which is required where he proceeds against an insured person.178 He may obtain judgment against the uninsured person and then recover from the Trust any amount unpaid. Until 1954 a claim for judgment against the Trust for the unpaid balance of a judgment against the uninsured person would not be defeated by the fact that the proceedings against the uninsured person had never been brought to the knowledge of the Trust. I t is now provided that where the judgment against the uninsured person is obtained within the State, there cannot be recovery against the Trust unless the Trust knew of the action against the uninsured person before it came on for hearing.lr9

The victim may proceed directly against the Trust where the owner or driver is dead or cannot after strict enquiry and search be found, provided that there is an occasion of tort liability which would have been covered had there been the policy required by the Act and provided the victim has overcome special procedural hazards.lsO

Where payment is sought for emergency treatment the claimant need not show that the vehicle involved was insured.lsl There is however a procedural hazard in that notice in writing must be given to the Trust within one month.182

The final incidence of loss where the vehicle is uninsured depends on a number of contingencies. In some situations the owner and

thereafter i t would be time enough to consider compelling motorists by criminal penalties to insure their vehicles. South Australia, Tasmania, Queensland and New Zealand have, on this view, put second things first.

177 Sec. 8 (1) . 178 Sec. 29 applies only to "an action for damages against either an insured

person or the Trust." The writer submits that an action against the Trust for the unpaid balance of a judgment against the uninsured person is not within sec. 29 and that the victim may proceed against the Trust though no sec. 29 notice has been given to anyone. This interpretation is supported by the recent amendment to sec. 8 (1) which is referred to in the text.

179 Sec. 8 (1) proviso. 180 Sec. 8 (5). Notice of intention to make a claim and a short statement

of the grounds thereof must be given to the Trust "within a reasonable time after" the victim "knew" that the owner or driver was dead or could not be found (cf. the words "reasonable time after" in sec. 8 (5) and the words "as soon as possible after" in sec. 7 (2)) . The procedural hazard of sec. 29 also applies.

181 We have seen that this is the sole situation where it is unnecessary for the claimant to show tort liability.

182 Sec. 12.

driver may bc subjected to loss-shifting. This outcome may be due to the particular procrdure the victim has seen fit to adopt or it may bc the result of provisions for recovery over. The only function of the provisions for recovery over is punishment for failure to insure. There is nothing to suggest that Parliament had in mind in any situation the purposes of the tort rules.

Should the victim proceed against the uninsured driver or owner and compel satisfaction of the judgment, the owner or driver will have to suffer the loss ~nindemnified.~~3 In some situations the owner or driver will be wise to resist payment for a monthls4 after judgment and then seek to induce the victim to proceed against the Trust, for the owner or driver may be protected against recovery over by the Trust. Thus it is a good defence where recovery over is sought against the owner if he establishes that the fact that the vehicle was uninsured was not duc to his fault.ls5 Here is a clear rejection of the purposes of the tort rules. Where it is open to the Trust to shift the loss to the owner by recovery over the purpose is remote from that of the tort rules. In fact there may have been no fault, vicarious or otherwise, on the owner's part in respect of the management of the vehicle. He need not have been the judgment debtor. Recovery over is the exercise by the Trust of the statutory subrogation to a Monk U .

Warbeyls6 claim-a claim for damages for breach of the statutory duty to insure the vehicle. Where the owner is the judgment debtor there can bc no recovery over against the driver unless judgment could havc been obtained against the driver. I t is a rare situation where the owner is liable but the driver is immune. I t may arise from proccdural immunity in the Waugh u. W a ~ g h ' * ~ situation or where the accident has resulted from a defect in the vehicle of which the driver was unaware. There can be no recovery over a,gainst the driver who had thr authority of the owner and who believed on reasonable grounds that the vehicle was insured.lRR This is yet another clear

183 Cf. sec. 30 of the New South Wales Act which requires claims in respect of uninsured vehicles to be made against the "nominal defendant."

184 Action against the Trust for the amount of the judgment unpaid cannot be corri~nenced until a month after the judgment has been entered: sec. 8 (1) (c).

185 Sec. 8 (3) (i) . 1% [I9351 1 K.B. 75. 187 (1950) 50 State R. (N.S.W.) 210. 188 The owner held vicariously liable has, at common law, a claim to he

indemnified by his servant: Jones v. Manchester Corporation, [I9521 2 Q.B. 852; Semtex, Ltd. v. Gladstone, [I9541 2 All E.R. 206: Davenport v. Commissioner for Ilailways, (1953) 53 State R. (N.S.W.) 552. This claim, no doubt. is available to the owner as to so much of the claim as he

rejection of the purposes of the tort r ~ 1 e s . l ~ ~

These defences against recovery over involve the curious consequence that in some situations an owner or driver may enjoy a, greater protection against loss-shifting where the vehicle was uninsured, than he would have enjoyed if the vehicle had been insured. We have already seen that an owner or driver of an insured vehicle may be subjected to recovery over where, for example, there has been a breach of a warranty in the policy, notwithstanding that he is not liable in tort to the victim and notwithstanding that his breach of warranty cannot be characterised as fault "on his part." Where an uninsured owner can show that it was not his fault that the vehicle was uninsured, he is protected even though there would have been a breach of warranty if the vehicle had been insured. An uninsured driver who believed on reasonable grounds tha.t the vehicle was insured will be protected against loss-shifting even though there would have been a breach of warranty if there had been a policy.loO

Apparently there may not be recovery over in the situation where there has been a direct action against the Trust because the owner or driver was dead or could not be found.lQ1 The beneficiaries in the estate of the deceased owner or driver will be happy if the victim chooses to proceed against the Trust rather than against the estate.lQ2

had paid before the victim proceeded against the Trust. But can he claim indemnity in respect of any amount which the Trust recovers over against him? If he cannot, then the driver should hope either that the owner is impecunious or that recovery from the owner is by way of recovery over.

18s T h e Victorian Act, sec. 48, from which our sec. 8 was borrowed, has a further provision which denies protection against recovery over to a driver (whether or not he is the owner) who has been convicted of having at the time of occurrence out of which the death or injury arose been under the influence of intoxicating liquor whilst driving the car. The New South Wales Act excludes recovery over against the owner where the vehicle was driven without his authority, and against the driver where the driver believed on reasonable grounds that he had authority to drive and that the vehicle was insured: sec. 32. These provisions and the requirement in sec. 30 that proceedings must be taken against the nominal defendant (supra, 252, note 183) show a purpose opposed to the tort rules.

180 Prior to 1954, failure by the uninsured owner or driver to give notice of the accident-required by sec. 8 (6)-was not sufficient to give the Trust power to recover over against him. Sec. 8 (6) has now been repealed and by amendment to sec. 10 the insured and uninsured owner or driver are placed on the same footing.

l Q 8 J Sec. 8 (5). Provision for recovery over in sec. 8 is confined to the situation in sec. 8 (1) involving an unpaid judgment against the owner or driver.

102 Conceivably the Trust may be able to sue the deceased estate in quasi- contract.

The owner or driver who cannot be found will be happy to learn that the victim has recovered against the Trust.'" There are other complications. Assume for a moment that the driver is alone liable but is dead or cannot be found, and the victim recovers from the Trust. There is no provision for rccovery over against the uninsured owner. Probably the Trust would fail in an action for breach of the statutory duty to insure. The situation is similar to that in Daniels v . Va,uxlW where an action was refused. Assume that both owner and driver are liable and the driver is dead or cannot be found. Can the victim choose to proceed directly against the Trust? The words used in the Act are "owner or driver is dead etc.", not "owner and driver are dead etc." If the victim recovers against the Trust, is the Trust then able to recover over against the uninsured owner? Would the Trust be subrogated to the claim which the victim had against the uninsured owner?

Where the Trust has paid a claim for emergency treatment and the vehicle involved was uninsured the Trust may recover from the owner or driver the amount paid as a simple contract debt. There is however a proviso that it shall be a sufficient defence in such action if the defendant establishes to the satisfaction of the Court that he is not in any manner responsible in law for the bodily injury which gave rise to the emergency treatment.lD6 We have seen that emergency treatment is the sole situation where there may be compensation without showing tort liability. The proviso is intended to ensure that compensation is not achieved by loss-shifting unless there is tort liability. I t is a touching sop to the tort rules. There shall be no recovery over by way of punishment for not insuring, unless it can be shown that the purposes of the tort rules will also be served.

There is one exceptional situation where compensation under the Act is dependent on the fact of insurance. We have seen that before a hospital is entitled to payment for treatment of the victim it must be shown that the vehicle was in fact insured and that there has been an admission of liability to the person injured to the extent that some payment has been made under or in consequence of the insurance.ls6 The hospital has of course its remedy in contract against

193 Conceivably in this situation the Trust may be able to sue the owner or driver, when he is found, in quasi-contract.

194 [1938] 2 K.B. 203. 196 Sec. 12. 196 Sec. 13. Payment to doctor, nurse, etc, under sec. 12 is not enough, for

such payment cannot be said to be "under or in consequence of a contract of insurance."

the victim, and he may recover for hospital expenses against the Trust.

E. THE CALCULATION OF LOSS.

The calculation of loss is by the tort rules. The writer does not propose here to attempt a treatise on the tort rules as to the assessment of damages for personal injury or death but some points must be made to prepare the ground for the suggestion in the concluding part of this article that the tort rules must give way to a new basis of calculation.

The heads of damages for personal injury are pain and suffering, shortened expectation of life, medical expenses, loss of earnings, and whatever else may be got in subject to the test of remoteness. The problem of the test of remoteness offers scope for intellectual gym- nastics by law teachers and their students and is no doubt wisely avoided by practitioners and all courts save those of final appeal whose members may have as much time to spare as law teachers and students. For present purposes it is enough to observe that whatever the test may be, it leaves scope for judicial discretion. The tort rules do not unequivocally determine the consequences for which a victim may have damages and those for which he may not. And even when a consequence is "within" the rules there are no calipers or scales with which to measure it and for the most part no marketlV7 to say what a, measured consequence is worth. The value of pain and suffering no less than shortened expectation of life is the proverbial black hat sought by the blind man in the dark room. Loss of earnings, whether we take a "loss of wages" or a "loss of earning capacity" approach,lQs involves a large measure of speculation. And even "medical expenses" can pose some nice questions.lQ9

At first thought the calculation, in the event of death,*OO of the loss to those who were dependent on the deceased may be a more mechanical process. Here only pecuniary loss, we are told, may be

197 Arbitrary maximuul price-fixing was the only course open to the court in Benham v. Gambling, [I9411 A.C. 157, once it had determined that it was improper to allow the jury to flounder in the problem of how many times two apples go into four oranges.

19s See the Excursus in the writer's article, Mitigation of Tor t Danzages for Loss of Wages, (1955) 28 AUST. L.J. 563, at 571-2.

199 Ibid., footnotes, passim. 200 Comment in the text is confined to the Lord Campbell's action. There is

an action surviving to the deceased's estate in Western Australia (Law Reform (Miscellaneous Provisions) Act 1941, sec. 4 ) , but it is practically confined to a claim for funeral expenses unless the deceased was some time in dying in which case there may be a claim for loss of wages and medical

considered.201 It may be that with life expectancy ta,bles and annuity tables some appearance of precision may be achieved, but calculation depends upon predictions which can never be tested for they are predictions of what would have happened if the deceased had lived. And when it comes to setting off the "benefit" or "gains" conferred upon the dependants by the death,z0z the courts make of it a field day for the satirist. Maybe the various formulae by which we assess the benefit of accelerated payment under a life or accident policyzo3 are proper enough, but there is something tragically humorous in the picture of Oliver J. looking down from the bench at the plaintiff widow and assessing her re-marriage potential, despite her avowed intention never to marry againaZo4 Is a wife, qualified in some profession, who devoted herself to keeping house for a husband who earned the basic wage, "benefited" by his death since now she proposes to practise her profession and will enjoy a higher standard of living?z05 I t is established that in determining loss the courts can take into account events which have taken place between the death and the

Widows will be wise to remain chaste and unemployed until after trial; but being unemployed, at least, may involve hardship.

expenses. The damages allowed in Rose v. Ford, [I9371 A.C. 826, are expressly excluded by sec. 4 (2) (d) . Thus there is very little, if any, room in Western Australia for the principle in Davies v. Powell Duffryn, [1942] A.C. 601.

201 Scots law allows "solatium" to the dependants. The Court of Session, like the Court of Appeal in Benham v. Gambling (supra, n. 197) has insisted on maximum price-fixing. The maximum has been geared until recently to the cost of living index but a recent decision of the Court of Session seems to have frozen it: Mutch v. Scott's Shipbuilding, [I9551 Scots L.T. 45.

202 American law wisely steers clear of assessment of benefit by completely ignoring any consideration save what the dependant would have got had the deceased lived.

203 Western Australia has not adopted the United Kingdom Fatal Accidents (Damages) Act 1908. The curly question in the case of a policy effected by the deceased is how much the dependant would have received had the deceased lived to die another way.

204 Hall v. Wilson, [1939] 4 All E.R. 85; see also Willis v. T h e Commonwealih, (1946) 48 West. Aust. L.R. 88, and Perpetual Trustees v. Crossan, [I9941 N.Z.L.R. 1033.

205 This is a stark way of putting the problem in Leys v. Polinelli, (1951) 53 West. Aust. L.R. 89. Dwyer C.J. held she was benefited: but his brother Wolff J, has recently disagreed. Sheils v. Cruikshank, [I9531 1 All E.R. 874, [I9531 1 W.L.R. 533, does not answer the problem for there the plaintiff had the same income from her investments before as after the husband's death.

206 Hall v. Wilson, [I9391 4 All E.R. 85; Williamson v. Thorneycroft, [I9401 2 K.B. 658; Willis v. Commonwealth, (1946) 48 West. Aust. L.R. 88. Strangely, however, where the event is inflation of the currency, i t must be assumed that this has not happened: Scot v. Heathwood, (1953) 46 Queensland S.R. 91. As in Hately v. Allport, (1954) 54 State R. (N.S.W.)

We have scen that jury trial has been abolished in Western Australia in motor vehicle personal injury cases.207 Thus the application of "sound principle" replaces the exuberance of juries in the calculation of losses. No two cases are ever the same, and the kind of statistics which Current Law and the Scots Law Times have been collecting cannot be more than a rough guide. The writer would say, however, based on information from press reports and from counsel, that our judges' assessments are generally less than the assessments which juries in other States would have made. This may be a consequence of "sound principle", but it is curious that, however consistent each judge may be with himself, there is very little consistency between verdicts of different judges. The truth is, as the writer has been endeavouring to show, that "sound principle" leaves substantial scope for individual evaluation. The fact that there is no consistency as between verdicts of different judges is not matter for criticism of the judges; it simply emphasises that the tort rules are indeterminate.

The calculation of damages, like fault-finding and fault-balancing, involves extreme hazard for the victim who would push on in the face of an offer of settlement or payment into The norm for an

17, and Mutch v. Scott's Shipbuilding, [1955] Scots L.T. 45, the judges apparently hoped to do a national service in arresting the inflationary spiral by denying its existence. Perhaps too they are conscious of how slowly their own salaries respond to the changes in the value of money and they feel that the lot of others should be no better.

207 Sec. 16, copied from the South Australian Act, sec. 70i. Our section expressly extends to actions against the Trust. The South Australian section does not purport to extend to actions against the nominal defendant -it refers only to actions "against the owner or driver." In any case, the writer is informed, juries have not been used in civil cases in South Australia for more than 25 years; they were virtually abolished by the Juries Act 1937. In New Zealand all actions in which £500 or more is claimed must be tried by jury. I t is the impression of the writer's New Zealand informant that awards in New Zealand are less than in Australia. This may simply reflect the different values of our currencies. But it could be used to support a suggestion, contrary to the writer's impression, that juries do not tend to inflate awards of damages. The jury survives in Victoria and New South Wales where, the writer is informed, jurymen tend to be generous. One writer complained recently of the "eccentric generosity of juries7'-"the hope of fantastic verdicts makes negotiated settlement difficult": see Current Topics, (1954) 28 AUST. L.J. 2. But even New South Wales juries may be outdone by their American colleagues. In Kieffer v. Blue Seal Chemical Co., (1952) 107 F. Supp. 288, the jury awarded $250,000 to a 36-years old plumber and the award was upheld by the United States District Court. The jury has been abolished for motor vehicle personal injury actions in Tasmania (sec. 73) and Queensland (sec. 12) .

208 Cf . the New South Wales Act, sec. 38A, which tends to throw the hazard in the calculation of damages onto the insurer. The section was inserted

offer of settlement by the Trust will tend to be something a little less than what the judge least kindly disposed to victims might award. Counsel who advises his client against acceptance will have, along with his client, some anxious moments. I t may not matter so much if his client is financially irresponsible and the cost of failure will be borne by the Trust and himself, but the client who owns his own home is especially vulnerable.

F. THE SETTLEMENT OF CLAIMS.

Once compel insurance, and the argument will inevitably be pressed that there is no point in continuing competition for business between insurance companies with resulting costs in the form of commission and administration expenses; costs paid with money which might more properly be used in compensating victims.210 The Western Australian Parliament did not yield immediately to this argument. The 1943 Act followed the legislation in the other States by simply requiring production of evidence of insurance with an approved insurer when licensing the vehicle. But from the outset the idea of a pool was in the minds of members. In the debate on the 1938 bill Mr. C . G. Latham said:-"If we have compulsory insurance the money should be paid into a pool, and compensation paid from that pool. There should be no profits made beca.use we are compelling people to insure and we should take every precaution against the community being exploited."211 The non-profit idea had the support of the party of the left only, but the pool idea eventually found general A bill to establish a pool to be administered by the

in 1951 and precludes payment into Court with or without a defence denying liability. The writer has 1x0 information on the functioning of sec. 38A; it could lead to oppression of insurers and fee-spinning by lawyers in the face of fair offers of settlement.

209 Western Australia has a "combined" profession. 2m Mr. 0. Zehnder (Secretary of the Royal Automobile Club), in giving

evidence before the Select Committee of the Legislative Council (supra at 210, n. 40), said: "If we all have to insure, why employ a lot of clerks to type out policies?" (1940) 2 PARLIAMENTARY PAPERS (W.A.) NO. A2, a t 7.

211 (1938) 102 PARL. DEB. 3081. 2 u The Hon. A. Thomson in the Legislative Council debate on the 1938 bill

said, "A common pool or trust fund should be established to meet the liability." On 27th August 1940, the same member moved in the Legislative Council for the appointment of a Select Committee. T h e Select Committee was appointed on 4th September and consisted of the Hons. G. Eraser, W. R. Hall, H. Seddon, and G.B. Wood. The report, presented on 15th October, contained these recommendations:

"1. We, therefore, recommend that legislation be brought in immediately to provide for a Compulsory Co-operative Pool to be

State Governmirlt Iilsurance Office was defeated in the Legislative - Council in 1 941, and the 1943 bill, which became law, dropped the pool idea. It was revived in 1948 by the parties of the right and a bill to establish the Trust and the Fund213 received the support of both Government and opposition parties.

administered by an advisory body of three persons, one to be appointed by the Government, who shall act as Chairman; one representing the motorists; one representing the public and experienced as an insurance underwriter.

2. The premium to be collected by the Traffic Department and local authorities on the issue of licenses and transmitted to the Licensing Trust Fund established for that purpose.

3. The Board to appoint the manager and staff necessary to administer the fund, and adjust claims.

4. Premiums to be adjusted from time to time by the Board to ensure the necessary protection to the public at the lowest possible cost to the motorist.

5. Administrative costs not to exceed 10%. 6. Provision to be made in the Act to enable the Board to collaborate

with the Traffic Department regarding the cancellation of negligent motor drivers' licenses.

7. That power be given to the Board to recover from intoxicated persons responsible for accident the amount of compensation paid by the Board as a result of such accident.

8. In order to minimise motor accidents and thus reduce claims for compensation from the pool, your Committee strongly recommends that more funds be made available for appointments to the 'Traffic Branch of the Police Department to enable it more effectively to police the regulations.

T h e reasons for the Committee's recommendations are based on the following overwhelming evidence which has been submitted: That a pool as proposed by your Committee should be established and should be administered at a maximum cost of 10yo.

None of the witnesses could separate the cost of personal accident from their comprehensive policy charges. But insurance companies main- tain it is not possible for them to administer under 30 per cent:" (1940) 2 PARLIAMENTARY PAPERS (W.A.) NO. A2, ab5.

I t will be noted that the Committee made no recommendation on the issue of profit, although one of the witnesses (Mr. 0. Zehnder, Secretary of the R.A.C.) considered that no profit should be made. Tlritnesses representing the two principal non-tariff insurers (Mr. R. A. Forsaith for Harvey, Trinder (Aust.) Pty. Ltd. and Mr. Lenox for Bennie S. Cohen & Son (W.A.) Ltd.) gave evidence that 10% would be adequate for administering the pool: (1940) 2 PARLIAMENTARY PAPERS (W.A.) NO. A2, at 7.

213 Described in detail, i ~ z f r a at 260-267. Western Australia has gone much further than New Zealand, where a voluntary pool (the Underwriters' Insurance Pool) is run by a number of the insurers. The pool has no existence in law; i t is not incorporated and it avoids publicity. The New Zealand pool was not entirely unknown to Western Australia. In debate on the 1941 Bill which proposed a pool to be administered by the State Government Insurance Office (see supra, notes 210, 211) the Minister

T h e Motor Vehicle insurance Trust.

The Trust is a body corporaten4 consisting of five members appointed by the Governor. The members are the manager for the time being of the State Government Insurance Office, three members nominated by the Fire and Accident Underwriters Association of Western Australia (the tariff companies), and one member nominated by those participating215 approved insurers who are not members of the Association. The members elect the Chairman.216 The duration of office is three years but members are eligible for renomination and re-appointment.217

The Trust employs its own staff and pays them out of the Fund.21s

T h e conduct of settlement by the Trust.

We have seen that any damages, liability for which is covered by a policy under the Act or would be covered if there were a policy under the Act, may mediately or immediately be recovered from the Trust. Where the action must, in the first instance, be brought against the person liable by the tort rules the Trust is given by the Act and by the policy complete control over the conduct of proceedings in defence of the person liable.219 In the situation where the '"insured"

for Works said: "There is the same sort of pool arrangement in New Zealand; I think it is not entirely done by the State:" (1941) 106 PARL. DEB. 2349.

214 Secs. 3A, 3C. 215 The word is explained infra at 265. 216 Sec. 3A. 217 Sec. 3B. There are sections determining quorum and voting (sec. 3 D ) ,

resignation (sec. 3E) , disqualification (sec. 3F) , filling of vacancies (sec. SG), appointment of acting members (sec. 3H), and remuneration of members (sec. 8J) .

21s Sec. 3K. 219 By sec. 10 ( 5 ) . "An insured person and the owner and driver of an

uninsured motor vehicle shall not, without the consent in writing of the Trust", enter upon litigation, offer or promise payment or settlement, make payment or settlement, or admit liability. If the insured person or the owner or driver of the uninsured vehicle does not comply the Trust may recover over against him. The powers of the Trust to conduct defence and settlement of the claims are expressly conferred by sec. 11. The powers extend to conduct of negotiations, conduct and control of legal proceedings, payment, settlement, and compromise (sec. 11 (1)) . If the defendant does not execute documents, or is absent or cannot be found, the Trust may execute the documents on his behalf (sec. 11 (2) ) . Sec. 11 (3) seeks to cover the situation where claims in respect of person and property are brought and the defendant is not insured against claims in respect of property. Where the defendant has insurance in respect of damage to property or as to excess in passenger personal injury claims, his insurance company will work out an arrangement with the Trust as

is not in fact insured because he is subject to recovery over as a result of the forfeiture of the policy or a breach of warranty, the Trust may nonetheless control the proceedings against him. But there is a proviso that if he has made any written request to the Trust that it should settle or compromise up to any specified sum or should pay or should contest the claim and the Trust acts unreasonably in failing to comply with such a request, then the Trust cannot recover over against him more than the amount of the liability which the Trust would have paid or incurred if it had not acted unreasonably. There is no similar protection available to the uninsured owner or driver against unreasonable action by the Trust. And there is no similar protection available to the insured owner or driver as to excess in a passenger claim. Uninsured owner or driver and insured owner or driver are at the mercy of the Trust as to excess.

In the conduct of proceedings, whether in defence of the person liable or in defence of the claim brought against the Trust directly, the Trust enjoys important procedural protections. Most of these have already been considered.220 One remains to be mentioned. The Trust may, where an insured person or the Trust has received notice

to the conduct of the defence. Prior to 1948, when the section was amended to substitute "Trust" for "approved insurer", the insurer carrying the insurance under the Act would almost invariably have also carried the property damage and the passenger excess insurance under a comprehensive policy. Sec. 11 (3) does not cover the situation where a claim is made by a passenger in excess of £2,000, or claims are made by a number of passengers in excess of f20.000 and no insurance is carried as to the excess. Control by the Trust of the conduct of proceedings against the owner or driver of an uninsured vehicle was first given by amendment to sec. 10 (5) and (6) and sec. 11 in 1954. Absence of control prior to 1954 resulted from the borrowing of the insured vehicle provisions and the uninsured vehicle provisions from different sources. In the situation where the "insured" is not entitled to be indemnified because he is subject to recovery over as a result of the forfeiture of the policy or a breach of warranty, the Trust may nonetheless control the proceedings against him. But there is a proviso that if he has made any written request to the Trust that it should settle or compromise up to any specified sum or should pay or should contest the claim and the Trust acts unreasonably in failing to comply with such a request, the Trust cannot recover over against him more than the amount of the liability which the Trust would have paid or incurred if i t had not acted unreasonably: sec. 7 (5). There is no similar protection available to the uninsured owner or driver against unreasonable action by the Trust. And there is no similar protection available to the owner or driver who is uninsured as to the excess in a passenger claim.

220 Knowledge of action under sec. 7 (1) and, since 1954, under the proviso to sec. 8 ( I ) , where the accident occurred within the State, special notice under sec. 7 (2) and (3) ; special notice under sec. 8 (5) ; notice under sec. 29; trial without jury under sec. 16.

of a claim,"] require the injured person to submit himself for medical examination by a legally qualified medical practitioner nominated and paid by the Trust. If the injured person fails to submit to such examination without reasonable excuse, no action for damages may be commenced; and any action already commenced may not be proceeded with until the injured person has submitted to the

When these procedural protections are added to the great risks involved for the claimant in the forensic rites of fault-finding, fault- balancing and calculation of loss, it will be apparent that the victim is powerfully deterred from pressing his claim. The lottery of litigation is a weapon which may be used by the Trust either to scare the victim into abandoning the claim or into accepting an offer of settlement which does no more than pay his expenses to the date of settlement and for the rest leaves him to fend for himself.

Probably no more than one-third of victims seek legal assistance in pressing their claims.223 Of the rest, some have been told by the police officer who attended the accident or by a Trust investigator that they have no ease and accept this as an authoritative judgment. Others are less timid and put forward a claim which comes mediately or immediately to the Trust. They are now opposed by a financially powerful, highly trained, and heavily armed adversary. The Trust is entitled to use all of its power, its training, and its armament to defeat the victim's claim entirely or to limit what he receives. One should not expect it to do otherwise. The word "Trust" tends to make one forget that the Trust is not a department of government. Nor is it a philanthropic institution. I t is an association of insurers,224 only

221 The section has not caught up with the extension of control of proceedings by the Trust to include proceedings against the uninsured owner or driver.

222 Sec. 30. Costs of the examination may be allowed to the insured person, or to the Trust as the successful defendant, in the discretion of the Court.

223 "Ambulance chasing", said to be popular with some American attorneys, is forbidden by sec. 27. Victoria (sec. 59) and South Australia (sec. 70s) have similar sections. On American experience, see Monaghan, The Liability Claim Racket, (1936) 3 LAW & CONTEMP. PROB. 490; BLAUSTEIN AND PORTER, THE AMERICAN LAWYER, 247, 260, 261; McCracken, Report on Observance of Professional Standards, (1951) 37 VA. L. REV. 399.

224 Whether the fact that i t has a monopoly of this kind of insurance leads to a sterner attitude by the Trust is not easy to say. Perhaps a liability insurance company will gain goodwill by solicitude for victims, because victims may also be clients or potential clients. 4 n d clients may not be happy about being forced to defend claims; they may lose goodwill as a result of publicity. But any advantage for victims which competition might bring would be more than offset by multiplication of administrative costs and resulting wastage of money available for distribution.

one of which (the State Government Insurance Office) may be said to have any public duty, engaging in a kind of insurance where premium income is limited in the last resort by public control, and it may fairly seek at least to avoid a deficit. The writer does not intend that this statement should be regarded as a polemic against tile Trust or its officers.

The victim may be defeated at this stage by the fact that he has made a statement to a police officer or to a Trust investigator225 which would tell heavily against him in the forensic rites. Or he may be defeated because he is unable to show any evidence likely to be sufficient in the forensic rites, or indeed because he is unable to show any evidence at a11.22Qnd even if he has made no statement and has some evidence, he cannot lightly refuse an offer of settlement even though it is only an offer of a fracti0n~~7 of his loss. If he refuses, the hazard of the list in the selection of the trial judge and the hazard of judicial evaluation in the forensic rites lie ahead.

The victim who seeks legal assistance in pressing his claim is most often22s in a stronger bargaining position. But he may have difficulty in finding a solicitor to represent him. Some firms require a cash deposit by way of security for payment of the costs. In some cases it will be apparent enough that the victim will be unable to pay costs unless he recovers.229

225 The driver will be asked to give information to the Trust investigator- but any admission made may subsecluently defeat his claim against the driver of the other vehicle. T h e provision in sec. 10, excluding notices from discovery or admission in evidence, applies only to the statutory notice of accident under the section.

220 The writer will always remember reflecting, a t the scene of an accident, on the difficulty the relatives of the deceased victim of a hit-and-run driver would face in establishing liability. The victim's body was some distance from the edge of the road. There were no indications on or at the edge of the road to show where the victim had been hit. American courts lean against the defendant in the matter of onus of proof where the victim has been killed. In some States the onus is placed on the defendant to escape liability by proving contributory negligence, e.g., the New York Decedent Estate Law: see James, Contributory Negligence, (1956) 62 YALE L.J. 691, at 729-731. Ontario places the onus of disproving negligence on the defendant: The Highway Traffic Act, sec. 48.

227 The rule of apportionment in contributory negligence, by the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, is always available to explain the fraction.

22s The victim's position is not necessarily stronger. Much depends on the energy of his solicitor in unearthing evidence.

229 Whether or not the old law of champerty now precludes contingent fee arrangements, i t is certain that the Barristers' Board of Western Australia would not tolerate them. So long therefore as Western Australia lacks anything worthy to be called a scheme of legal aid, victims without

The Trust's bargaining power is at its weakest when either the victim is very rich or very poor. The very rich can afford to lose in the lottery of litigation, the very poor have nothing to lose.230 I t is against the man of moderate means that the Trust's power is a t its greatest. The solicitor who advises his client victim to refuse an offer of settlement or to go on in the face of a denial of liability will feel a great responsibility if he knows that his client owns his own home. The cost of losing a Supreme Court action is considerable and the cost of winning the action and finally losing whether in the Full Court or the High is terrifying.

Final disposition of claims is not delayed in Western Australia by congestion of the Court list. Where there is congestion the baxgain- ing position of the victim who is in immediate need is weakened.2a2 The disposition of a claim may of course be delayed in Western Australia, as in any State, because of the common law rule that all damages arising from the same cause of action must be claimed in the one action. I t is unwise to accept settlement or proceed to trial until the medical men are able to express an opinion on future disability. The common law rule may weaken the bargaining position of a victim who is in need.

resources must depend for legal assistance on the philanthropy of solicitors. Accident litigation in the United States is conducted, with legal and professional approval, on the contingent fee system and the defeated is not required to pay the costs of the victor, except court fees. The result is to strengthen the bargaining position of the victim. The writer does not wish to be taken as approving the contingent fee and limited penalty system (the contingent fee may be as much as 50% of the damages recovered. It is said that some juries double the damages in order to provide for the attorney) and oppression does not become moral when it is oppression of an insurer. The writer's proposal, it will be seen, leaves no room for oppression of victims or insurers. Juries in the United States seem to be kindly disposed towards motor vehicle accident victims. On the other hand court congestion in most States delays, in some instances for years, the disposition of a claim. The bargaining position of a victim, at least the poor victim, is thereby weakened.

230 The very poor includes an infant. It is true that the next friend may be required to meet the costs of an unsuccessful action but this prospect is avoided, if no one is willing to act as next friend, by an application to a judge to dispense with the services of a next friend.

231 The Trust so far has boggled at dragging a successful victim to the Privy Council.

232 Fantastic delays due to Court congestion occur in some American States. The Yale survey found that nearly half of the New Haven cases where an injured wage-earner and an insured defendant were involved were still being litigated after 24 years: McNiece and Thornton, Automobile Accident Prevention and Compensation, (1952) 27 N.Y.U.L. REV. 585, at 589. New South Wales and Victoria are also in difficulties; the waiting time in New South Wales, the writer is informed, is from 18 months to two years.

G. THE MOTOR VEHICLE INSURANCE FUND:

THE EFFICIENCY O F DISTRIBUTION

OF SELECTED LOSSES.

The final burden of distributed loss depends not only on the number and amount of losses selected for distribution but on efficiency in distribution. It was a desire to avoid inefficiency in distribution which determined the establishment, in 1948, of a single insurer and a single pool whence claims are settled.

Those who were approved insurers in 1948 were given the opportunity to participate233 in the Motor Vehicle Insurance

Every approved insurer who gave notice of desire to participate took an interest in the Fund determined by the gross premiums received by that insurer during the year ended 30th June 1 9 4 8 . ~ ~ ~ A participating approved insurer may withdraw on giving six months notice;236 its interest is then divided between the remaining participants in proportions determined by their interests in the Fund. The Trust is empowered to determine the amounts payable by participating approved insurers by way of contribution; the contribution of any individual insurer must be in proportion to his interest. Failure to pa,y a contribution may involve exclusion from the Fund and division of the interest of the insurer in default among the remaining participants.237 Thus, while there are ways in which participating insurers may cease to be participants, there is no provision for new insurers to acquire interests in the Fund.238

The Fund consists of the contributions, insurance premiums, and other moneys which the Trust receives under and for the purposes of the Act. The Trust is required to pa,y out of the Fund all claims, costs, expenses and other moneys payable by it under the Act. A separate ledger account in respect of each year ending on the 30th June must be kept. The account must show the amounts paid for administration and general expenses, the total amount paid in respect of claims arising from accidents occurring in the year,239 and the

233 Sec. 3L. 234 Established by sec. 3P. Participation in the Fund, we have seen (supra, at

260), gives some control over the activities of the Trust. 235 Sec. 3L (2) and (3) . 236 Sec. 3L (4) . 237 Sec. 3N. 238 Theoretically successive withdrawals could bring us to a stage where there

are no participating insurers and no one to nominate members of the Trust. 239 This amount includes "costs and other expenses incidental to claims";

in the result the Trust is able to conceal some of the costs of distribution.

total amount of premiums received in respect of insurances effected during the year."O Important changes in the provisions dealing with the disposition of any surplus and the financing of any deficit were made in 1954. The surplus is now disposed of firstly in payment of losses debited in respect of any previous year or yeaq2-" secondly in paying a dividend to participating approved insurers in the year in which the surplus occurs,242 and thirdly in paying a dividend to those who were participating approved insurers in any other year.243 The dividend paid by the Trust in respect of any year is limited to a sum not exceeding the equivalent of 5% per annum of the total premiums received by the Trust in respect of insurances effected during that year.244 The deficit to the debit of the account after all claims have been finalised becomes the liability of the participating approved insurers during the year to which the account relates in proportion to the interest of each of them in the Fund during that year.-The Trust may recover from each participating approved insurer at any time deemed expedient by the T r ~ s t . ~ 4 ~ A defaulting insurer may be excluded, at the discretion of the Trust, from participation in the

A General Reserve Account is established to which the Trust is required to pay the balance of any surplus not used in meeting any loss or in paying any dividend. Where the General Reserve Account is in credit the premium rate to be charged in any year may be reduced having regard to the credit.247 The Trust may pay from the General Reserve Account the amount of any deficit in any year.2Ps

These provisions follow the scheme of cumulative preference shares save that the holder of the shares is not necessarily required to pay for them.

240 Sec. 3P (1) , (2) , (3) , and (4) . 241 Sec. 3P (5) (a) (i). The payments are in proportion to the interest of

each insurer in the Fund for the year in respect of which the loss is being met (sec. 3P (5) (b)) . To be entitled to a payment an insurer must have been a participating insurer both in the year when the surplus occurred and in the year in respect of which the loss was debited.

242 Sec. 3P (5) (a) (ii) . 243 Sec. 3P (5) (a) (iii) . The insurer must have been a participating approved

insurer both in the year in which the surplus occurs and in the year in respect of which the dividend is paid. The share received by each insurer is in proportion to the interest of that insurer in the Fund for the year in respect of which the loss is being paid: sec. 3P (5) (b) .

244 Sec. 3P (5) (a) (v) . 245 Sec. 3N (5) . 246 Sec. 3P (6). 247 Sec. 3P (6) (c) (d) . 248 Sec. 3P (6) (e).

The issue of a policy of insurance, we have seen, is contempora- neous with the licensing of a vehicle. The policy is issued b,y the local authority as agent for the Trust.249 Premiums received must be remitted to the The local authority is not entitled to subtract any amount to cover the administrative cost of collecting the premium."l During debate on the 1948 amendments some members proposed payment of a commission of 5% to local authorities. The proposal was opposed on the ground that this would simply mean adding 5% to the premium and was defeated. The debate262 on the proposal makes intriguing reading. The assumption made by those opposing the proposal was that the participating approved insurers must be guaranteed a profit and that premiums would be adjusted accordingly. One wonders just what it was thought the insurance companies were giving in exchange for the guarantee of profit save a lifting of lobby pressure against the amendments. But more important to note is the readiness to throw some of the cost of loss- distribution onto the local authority. I t is true that the cost to the local authority is small but the subsidy shows tha.t Parliament was not only ready to protect motor vehicle owners against loss-shifting but also to widen the area of the distribution of loss.

Administrative costs of distribution are thus at a minimum. Only one establishment of officers is necessary to handle the settlement of claims. In the situation where more than one insured vehicle is involved contribution claims are unnecessary. The involved procedure by which a nominal defendant in other Australian States defends in hit-and-run and uninsured vehicle situations is unnecessary.253 The cost of competition for business between insurers is excluded. Policies are issued and premiums collected without any cost to the Fund.

ws "Local authority" is defined in the Traffic Act 1919-1953, sec. 4, as "a municipality and the council thereof or a road board; and means the Commissioner of Police in respect of outlying land and in the metropolitan area."

250 Sec. 3R.

2jia Where premiums are collected by licensing authorities in other States, an amount is subtracted as the cost of collection: see, for example, New Zealand Act, sec. 77, and Victorian Act, sec. 42.

253 The nominal defendant procedure was followed in Western Australia prior to 1948. See, for the present law, in South Australia, sec. 70d; in Victoria, secs. 47, 48 and 49; i n New South Wales, secs. 29, 30, 31 and 32.

H. PUBLIC CONTROL OF THE ACTIVITIES

OF THE TRUST.254

The Trust must, when required by the Minister, furnish to him such information as he reasonably requires relating to premiums received, claims paid, persons injured, and any other matters relevant to the Act.'5S T!lr fixing of premiums by the Trust requires the approval of the Mini~ter.~" Terms, warranties and conditions of the policy are determined by the Trust but also require the approval of the Minister.257 Provision is made for the appointment of a committee primarily to enquire into and report upon the question whether the premiums, or any term, warranty or condition in the policy, are fair and

The committee is to have the powers of a Royal Commission and is required to lay a copy of its report before both Houses of Parliament. Any policy which includes a term, warranty or condition which is in form or substance one disa.pproved by the committee ceases, subject to certain conditions, to be a policy complying with the

25-1 In New Zealand premiums are fixed by regulation under sec. 16. An unofficial enquiry is conducted by the Registrar of Motor Vehicles. His decision is based on returns which insurers have to submit to him each year. In Tasmania the rates are fixed by regulation under sec. 77. There is provision for the appointment of a Premiums Board with power to recommend rates: sec. 74. In Queensland premiums are fixed by regulation -regulation 2 under the Motor Vehicle Insurance Act 1936. Victoria has detailed provisions requiring furnishing of returns to the Minister (sec. 65) and the appointment of a Premiums Committee to recommend maximum rates (sec. 66). Premiums are fixed by regulation under sec. 68. In New South Wales rates are fixed by regulation under sec. 33. There is no rate- fixing by public authority in the United Kingdom. Rates are fixed by the Commissioner of Insurance in Massachusetts. The insurance companies complain that the rates are too low and that they are determined by other political pressure groups: Grad, Recent Developments in Automobile Accident Compensation, (1950) 50 COLUM. L. REV. 312.

255 Sec. 25, copied from South Australia, sec. 701. 256 Sec. 3R (5) ; this requirement was inserted in 1951. The Chief Secretary

said in committee: "It does not seem to me to be right at all that the Trust should be able to determine exactly what to charge as premiums, usually of course on the rise, without reference to the responsible Minister:" (1951) 130 PARL. DEB. 1122.

257 Sec. 3R (5). This requirement also was inserted in 1951. 5 8 Sec. 31, adopted with some changes from the South Australian Act, sec.

'ion. T h e committee is to consist of six members-the Auditor-General, the Manager of the State Government Insurance Office, two persons representing owners of motor vehicles, and two persons representing the Motor Vehicle Insurance Trust.

259 Notices of disapproval must be published in the Government Gazette and three months must elapse after publication: sec. 7 (9). This is rather

Where the Committee reports that all or any of the premiums charged are unfair and unreasonable, the Governor may, on the recommendation of the Minister, by proclamation suspend the operation of the This provision, the writer assumes, is not so much aimed a.t tile situation where the Trust is making too great a pr~f i t ,~" but at the situation where the number of accidents and the generosity of judges have so increased the amount of the loss to be distributed that it is thought too much for motor vehicle owners to bear. I n which case, the remedy apparently is to return to the old system where the victim of the financially irresponsible bears his own loss.

This provision for suspending the operation of the Act strikes a significant note on which to end this part of the article. I t reflects some awareness of the essential makeshift character of the Act. I t is trse that the Act is considerably more efficient than the other makeshift arrangements on which it is modelled. The Motor Vehicle Insurance Trust and the Motor Vehicle Insurance Fund are important a ,ch ievement~ .~~~ But within the frame of the Act energy is dissipated in opposition of purposes, and in the resolution of purposes the social control achieved is in directions no one intended.

The time is ripe for a choice. There are three courses open:

( I ) To shuffle along with the makeshift arrangement. ( 2 ) To replace the makeshift arrangement by a machine designed

to carry out Parliament's intentions. ( 3 ) To restore and purify the tort rules by forbidding lia-bility

insurance and insisting that loss-shifting by the tort rules shall depend on showing a real culpability. Any choice will of course reflect a policy judgment. The social scientist can do no more than show what goes on and how it might be otherwise. The writer then is conscious that he rnters the policy forum in urging the construction of the

heavy-handed. If new policies are not issued, all vehicles will be uninsured. Would it not be sufficient to provide that policies will be read so as not to include the offending term, warranty or condition?

260 Sec. 92. 261 It would indeed be a heavy-handed way of handling that situation, though,

prior to 1951, the Act provided no other way. 262 The insurance lobbies in the other Australian States may not be too ready

to agree, though if press statements by insurers are to be believed, insurers in those States are not finding third-party insurance a profitable field. The insurance lobby has never been strong in Western Australia. One of the reasons given by the Minister (in a right-wing government) in moving the second reading of the 1948 Bill was: "Substantial sums now sent over- seas for reinsurance purposes will remain in this State. So far as can be seen the Fund will be self-contained and reinsurance will not be necessary": (1948) 121 PAUL. DEB. 1740.

machine which is outlined in the concluding part of this article. Experience to date and just a little reflection must destroy any save irrational loyalty to our Act. The only real choice, as the writer believes, is between restored and purified tort law on the one hand, and a new statute-made machine designed to carry out Parliament's intentions on the other. Theoretically we could restore and purify the tort law and make the new machine. Yet once compensation of the victim is otherwise ensured, there is nothing lefr for the tort rules to do which cannot more efficiently be done by the criminal law.

No doubt the proposed machine fits the ideology which is caricatured as "cradle to grave", and some will consider that this is enough to condemn it. The writer can only say that he sees the proposed machine as simply an efficient way of carrying out intentions which the history of the present Act shows have the support of members of all political parties in this State. I t may be, of course, that showing the efficient way will lead some to repent of their intentions; in which event they may choose restored and purified tort rules. If they make that choice, they merit our respect. The writer reserves his scorn for those who will seek refuge from the ordeal of choice by continuing to support the present Act, asserting perhaps that it is a compromise between opposing ideologies, between a laissez faire philosophy which admonishes us to look after ourselves and a paternalistic philosophy which requires that we be looked after. I t is true that, under the Act, some are looked after wholly or in some measure, while the rest are left to fend for themselves; but assigning the individual victim to one group or the other is determined not by a rational compromise of ideologies but by the lottery of the forensic rites and by resolution of bargaining powers.

111. THE PATTERN OF NEW MACHINERY

FOR THE COMPENSATION OF VICTIMS

OF MOTOR VEHICLE ACCIDENTS.263

T h e need to dissociate compensation and punishment .

We have seen that, for the most part,264 our Act leaves room only for punishment of the victim; that this punishment serves no purpose other than retribution; that the incidence of this retribution is determined by two closely related factors-in Court by the forensic rites, out of court by the resolution of the bargaining forces of victim and Trust; and that the quantum of this retribution is determined by these factors and the whimsy of fate which imposed the measure of the victim's injuries. The writer has denied that this punishment is a deterrent. There is no evidence to show that denial of compensation encourages road users to be careful, any more than protecting the driver from liability encourages him to be careless.

In very nearly all situations, visiting retribution on the innocent victim may be avoided by a rule of strict liability and visiting retribution on the victim "at fault" may be avoided by excluding defences of volenti and contributory negligence. French law adopts these techniques.265 They were recommended by the Columbia Committee

263 As will appear from the citation of authorities in the footnotes which follow, many of the suggestions here made have already been made by others. As long ago as 1932, the Columbia Report proposed the abolition of forensic rites by making liability strict and by instituting a system of tariffs in place of common law damages. The Saskatchewan scheme suggests the idea of giving up liability insurance in favour of accident insurance. The writer acknowledges his debt to the discussions at the Cambridge Comparative Law Conference in 1952, especially to the contributions made by Professors Ehrenzweig, Lawson, and Ussing. Professor Ehrenzweig's book, "FULL AID" INSURANCE FOR THE TRAFFIC VICTIM, is reviewed later. The writer's interest in the subject of this article was first inspired by reading Professor Lawson's NEGLIGENCE IN THE CIVIL LAW. Professor Ussing's article, The Scandinavian Law of Torts, (1952) 1 AM. J. COMP. L. 359, confidently predicts the adoption of a con~pulsory accident insurance scheme in Scandinavia.

264 Punishment of the owner or driver by recovery over (supra, at 220-222) is primarily for breach of his duty to the insurer, although some of the occasions of recovery over do involve culpable conduct in the management of a vehicle-drunken driving, unlicensed or unauthorised driving, and driving the vehicle in an unsafe condition-and some deterrence is no doubt achieved. Whether these occasions of recovery over should be retained is discussed infra at 284-286.

265 Save, we have seen (supra, at 224), where the victim was a passenger, in which case fault of the driver must be proved and the fault of the victim may limit his recovery.

Report. Rut they do not cover the situation where only one motor vehicle is involved and the driver of that motor vehicle is injured. Strict liability assumes that there is some person other than the victim who is "liable." Yet it must be apparent that when fault is no longer relevant a liability insurance scheme becomes an accident insurance scheme.266 The form of accident insurance enables us to avoid denying compensation to the d r i v e r - ~ i c t i m . ~ ~ ~

And we will be able to avoid denying cornpensastion to a spouse in those situations where the other spouse was driving and we cannot belabour the facts into showing that he was driving as the servant or agent of another. The liability insurance form of workers' compensation seldom creates difficulties of the kind the writer seeks to avoid, but it may do. The decision of the Victorian Supreme Court in Saltau v . S 1 0 a n e ~ ~ ~ was no doubt logically unavoidable, but it shows the inappropriateness of liability insurance in what is in fact an accident insurance situation.

The adoption of accident insurance requires a definition of the kind of losses which are to be insured. The form of words-"caused by or arising out of the use of a motor vehiclew-already used in our Act should be adeq~ate.~69 Parliament's intention is clearly to establish a special rCgime for losses caused by motor vehicles. I t may be that there is difficulty in justifying this special rCgirne. But once extend the rCgime beyond motor vehicles so as to include, say, harms caused

266 The Saskatchewan Scheme is an accident insurance scheme. See Green: Automobile Accident Insurance Legislation in the Province of Saskatchewan, (1949) 39 J . COMP. LEG. & INT'L L. (3rd ser.) 39. Ehrenzweig, op. cit.,

advocates accident insurance. Some of his reasons, viz., avoiding double insurance and contribution, do not apply in Western Australia because of the institution of the Motor Vehicle Insurance Trust.

267 The Columbia Report would deny compensation to the driver-victim save where there has been a collision with another vehicle. This is thought to be necessary in order to prevent fraudulent claims: Lewis, The Merits of the Automobile Accident Compensation Plan, (1936) 3 LAW a CONTEMP. PROB. 583, at 592. It is submitted that the situation is different in Western Australia where all accidents are investigated by the police. The Saskatchewan scheme allows compensation to the driver-victim even though there has not been a collision with another vehicle.

268 [I9531 Argus L.R. 114. A deceased worker had been employed by his wife. The personal representative sought workers' compensation on behalf of the widow. Herring C.J. and Gavan DuRy J. were content with the incantation: "nemo agit in seipsum."

269 Saskatchewan uses an elaborate formula: "Losses resulting from bodily injuries suffered as a result of: (a) driving, riding in or on, or operating a moving motor vehicle in Saskatchewan; (b) collision with or being struck, run down or run over by a moving motor vehicle in Saskatchewan:" Green, loc. cit., at 43. I

by or arising out of the use of push-cycles, and the difficulty is many times greater. The justification of the limited rkgime is closely related to the question of the incidence of distributed loss and is further considered in the next section.

Accident insurance has no need of the tort rules, but we have still to decide what shall be done with tort liability; the writer submits that this liability should be a.bolis11ed in the context of personal injuries caused by motor vehicle accidents. I t is admitted that, unless the accident insurance scheme pays tort damages, the amount the victim receives may be less than that for which he could recover judgment if wholly successful in a common law action. But satisfaction of such a judgment would depend, in most cases, on whether the vehicle was covered by liability insurance. There is a limit to the burden motor vehicle operations can be asked to carry, and if we are going to compel liability insurance along with pa,yment into the accident insurance fund, money which ought to be going to the financing of the accident insurance fund will be side-tracked into providing prizes for those who would play the common law If we do not . .

compel liability insurance common law actions will rarely be worth playing anyway because there will be no prizes.

The suggestion may be made that tort liability might be refurbished by insisting on true moral fault-gross negligence-in place of the present objective fault and by forbidding liability insurance: So refurbished, tort liability might be allowed to operate either parallel to accident insurance or correlated with it as the condition of recovery over against the person causing the injury or as the condition of denial of compensation to the person injured. The

270 If tort liability continues parallel to the accident insurance scheme some victims may achieve handsome profits. Where tort liability is available for recovery of "excess" damages (beyond those met by the accident insurance scheme), there is a danger that moneys received under the accident insurance scheme will be looked upon as the means of financing common law actions. This, the writer believes, is what has happened in Saskatchewan where tort liability is retained for recovery of "excess." Election, as in workers' compensation, is a less objectionable technique of correlation. But whether parallel to or in correlation with the accident insurance scheme, the writer rejects tort liability for the reasons given in the text.

The abolition of tort liability will extend to cases where the motor vehicle accident is also an accident in the course of employment. California has virtually abolished tort liability in the context of accidents in course of employment: COMMENT, (1954) 42 CALIF. L. REV. 852. In France only inexcusable faults by the employer give rise to liability independently of workers' compensation: Esmein, Liability in French Law for Damages Caused by Motor Vehicle Accidents, (1952) 2 AM. J. COMP. L. 156, a t 166.

writer doubts whether the refurbishing would make tort liability any more effective than now as a deterrent, and the framing of the test of moral fault will be a difficult assignment. If recovery is to be allowed to the individual injured, we will bc regressing to a primitive stage of legal development in allowing recovery of a penalty for private profit. If the penalty is to be enforced by recovery over or denial of compensation, it might be asked whether the insurer is equipped to select the occasions when proceedings should be taken in an endeavour to establish gross negligence? I t is not inconceivable that the insurance fund may be depleted by ill-conceived attempts to enforce penalties. Control of behaviour is better achieved by the criminal courts. The criminal law does not insist that causing of damage is a condition of conviction and punishment, and that punishment must be measured by the damage caused. Criminal procedure hedges the accused with protections, such as the rule as to onus of proof, which civil procedure does not afford.271

Financing the distribution of loss under an accident insurance scheme. The institution of schemes of workers' compensation was opposed

by many who asked the simple question-where do you stop? If you provide accident insurance for the hazards of employment why not for all the hazwds of life? The answer was that industrial society had increased the hazards of employment; that most workers did not and could not afford to provide, by insurance or savings, against losses resulting from those hazards; and there was a convenient technique for handling these losses-to compel the employer to insure. It is possible to offer a similar answer to the same question asked by those who will oppose compulsory accident insurance in the field of motor vehicle injuries. Many more are killed or seriously injured in motor vehicle accidents than are killed or seriously injured in the course of employment. Nowadays the factory gate is the point where the employee passes into comparative safety after running the gauntlet of the The great majority of people do not and most of them cannot afford, by insurance or savings, to provide against losses arising from motor vehicle accidents.273 The proposed scheme is as

271 The problem of control of behaviour is discussed infra at 282-286. 272 Modem amendments to workers' compensation legislation and judicial

decisions are seeking to extend to the worker protection against the hazards of the highway.

273 It is true that some can afford to meet losses from their capital resources, but these are few indeed. The Columbia Report and the Yale survey indicate that in America most accident victims belong to low income groups: McNiece and Thornton, Automobile Accident Prevention and

convenient to administer as a scheme applied to employment injuries.

There are, it is true, other hazards of life which result in death or personal injury. Disease continues, even in our community, to outdo employment and motor vehicle hazards. But the writcr is not prepared to bow to an argument that, because we cannot lessen the blows from all of life's hazards, we should not lessen the blows from any of them. In any event the writcr is probably arguing with himself, because Parliament has already acccpted that motor vehicle accidents are in a special category.

Motor vehicle accidents are a by-product of technological progress; but the present technique of financing distributed loss is not necessarily unfair. Many motor vehicle owners are in a position to make a further distribution;274 premiums may be passed on in the increased cost of the goods or services which the motor vehicle owner supplies. Where the motor vehicle owner is unable to make a further distribution the premium may be looked upon as a luxury tax. At the same time it would not be improper to supplement the premium income paid by owners with funds secured from other sources. I t might be proper to require payment of a premium as a condition of the grant of a driver's licence. I t is true that the owner will also have paid, but the privilege of driving a vehicle should involve some contribution to the fund as payment for the increase in one's power to kill and injure.276

The writer submits that all fines for highway offences which involve risk of injury, whether to the offender or to another, should

Compensation, (1952) 27 N.Y.U.L. REV. 585, at 588. The common form of accident insurance policy may not be beyond the means of a substantial number of people, but the protection afforded is so circumscribed by the terms of the policy that it may be a snare and a delusion. The suggestion that the proposed scheme should be applied only to the low income group cannot be entertained. It would be administratively impossible to operate such a scheme.

274 There is some recognition of this in the differential premiums under the Western Australian Act, though the better explanation of them may be in terms of opportunity for doing injury, assessed by type of vehicle, probable mileage, and passengers carried. There is room for a reconsidera- tion of differentials. I t may be possible to work out some safe-driver or safe-car reward plan. There is difficulty however in framing a plan which in fact rewards safety but is yet simple enough for efficient administration. The no-claim bonus which applies in Western Australia in "comprehensive" motor vehicle insurance will not do.

275 Every driver must take out an operator's certificate of insurance under the Saskatchewan scheme before he can obtain a driver's licence: Green, loc. cit., at 41.

be d o u b l ~ d . ~ ~ ~ Half of the fine should then be paid into the insurance fund. In this way the objection frequently voiced that the careful pa.y for the careless will be overcome. I t will be submitted that strict enforcement of standards of road behaviour by criminal process is of vital importance. Prosecution to compel the observance of soundly conceived rules must extend to the pedestrian as well as to the driver. The contribution which the pedestrian makes to the insurance fund by the penalty imposed on him will overcome the objection that motor vehicle owners are discriminated against in favour of pedestrians. Some of the explanation of the lack of sympathy shown by the Trust and the courts for the pedestrian is a sentiment that the pedestrian has paid nothing into the fund, that he is not "privy", as the lawyers say, and therefore he should not lightly be allowed to take from the

Some will ask why we should bother to extract premiums and to tax offenders. Would it not be simpler to establish a fund financed from general revenue? A sufficient answer is that in the modern pattern of Commonwealth-State finance, State revenue is inadequa-te to meet present expenditure. In any case, financing the fund from premiums and fines achieves the desirable purpose of imposing the distributed loss on those who have the immediate advantage of the dangerous activity, and on those who increase the dangers by the manner in which they conduct the activity. This is not to say of course that income from premiums and fines may not properly be supplemented from general revenue.278 Advantage from the dangerous activity extends to those who participate in the results of the activity; for example, the householder whose goods are delivered to him, or the passenger.279 And the motor vehicle is in a sense an expression

276 Where a sentence of imprisonment is imposed the Court should also impose a fine for the benefit of the fund.

277 One might ask how a passenger is "privy." The answer probably is that the driver has selected his passengers and the owner is either the driver or has selected the driver. It is significant however that "absence of privity" is the modern version of the "ingrate" explanation of the host- guest immunity in America: Vest v. Kramer, (1952) 10'7 N.E. 2d 105; (1953) 22 FORDHAM L. REV. 212.

278 If the writer's suggestion (infra at 278) that there should be special provision for medical treatment of accident victims is adopted, the State could well subsidise that treatment. Already, of course, there is some subsidy because where the Trust denies liability, the public hospital that has treated the victim must look to the victim for payment, and this is not always forthcoming.

279 The person who has paid the premium in most circumstances distributes some of the premium among these people in the cost of the goods or of the carriage.

of our way of life. There are intangible advantages in which every member of the community participates and for which the community generally may justly be asked to pay. Either vehicles belonging to the Crown in right of this State should be required to pay premiums, or the State should be required to reimburse the Fund to the extent of any cost incurred in respect of accidents caused by or arising out of the use of State vehicles. The co-operation of the Commonwealth will be necessary to ensure that the Fund does not have to "carry" Commonwealth vehicles. I t may seem unfortunate that interstate vehicles will be required to contribute to the Fund,280 and thus the "free border" will be lost. But this is the price of pioneering.

Abolition of tort actions will preclude actions for public nuisance, actions against local authorities for misfeasance, and actions against the Commissioner for Railways where, for example, there has been a level crossing accident. The fund could be given a right to reimbursement in circumstances where a tort action would have been available in respect of some danger external to the motor vehicle. But the writer considers that it would be more sound to provide for new penadties where necessary and thus achieve contribution to the Fund by the offender who creates a nuisance, by the local authority, or by the Crown in respect of its operation of the railways.

The channel of distribution.

The question of the channel of distribution will undoubtedly raise the tub-thumping issue of State versus private enterprise, which, we have seen, delayed the present Act for five years. I t is possible, of course, to retain the present channel of distribution through the Motor Vehicle Insurance Fund controlled by the Motor Vehicle Insurance Trust. I t may be even harder than it is now to see what the private insurance companies are doing to warrant their taking a profit. I t is true that they take the risk that in a bad year, when income is inadequate to meet losses, they may have temporarily to put up some capital. But the 1954 amendments seek to ensure that in the long run they will receive a skimming of 5% of moneys received by the Fund. And it might be felt to be wrong that they should control moneys which have in past been contributed from public funds, though it is true that already there is indirectly a contribution from public funds, since premiums are collected without

280 And that Western Australian vehicles will have to take out "old-fashioned" liability insurance when they go to other Australian States and Territories.

cost to the Fund. But if a skimming and private control are the price to bc paid politically, the writer considers that it should be paid.281

T h e calculation of losses.

Thcre are three courses open:-to preserve the tort rules governing assessment of damages in cases involving personal injury or death, to preserve but modify the tort rules, or to dispense with the tort rules and establish new rules for calculating losses.

The writer has expressed his lack of affection for assessment of loss by the present tort rules. Assessment is much too contingent upon judicial idiosyncrasies. I t is important that, so far as may be, uncertainty in the amount of any payment to be made to the victim should be avoided. Uncertainty increases the bargaining power of those who have control of the fund and tends to defeat compensation. The tort rules offer inadequate guide to the assessment of the victim's diminished earnings.ls2 The husband's action for loss of consortium has recently been clarified by a decision of the High Court, but the estimation in money of what the husband has lost leaves scope for wide variation in judicial imagination.283 Idiosyncracies in valuing pain and suffering and shortened expectation of life are unavoidable. In any case the tort rules achieve only a limited operation in most cases. The community generally is not 'Lclaim-wise" and the victim who does not consult a solicitor will probably accept a settlement offered by the Trust which gives only partial expression to the tort rules.

The writer considers that the choice is between reformed tort rules and a new set of rules establishing tariffs. Whichever is chosen, hospital and medical treatment should be provided by the fund. There is the germ of an idea in the Victorian system of subsidising hospitals so as to make accommodation available for accident victims.

281 Insurance under the Saskatchewan scheme is carried in the form of a separate fund, on a non-profit basis, by the Saskatchewan Government Insurance Office. The Office was established in 1944 to carry on a general insurance business on behalf of the Crown in right of the Province: Green, loc. cit., at 39.

282 The writer has indicated elsewhere that the judges are not yet sure whether they are giving damages for past and prospective loss of wages or for past and prospective diminished earning capacity: See (1955) 28 AUST. L.J. 563, at 571-572. Important differences in result will depend on which approach is adopted.

283 Toohey v. Hollier, [I9551 Argus L.R. 302. The High Court politely over- looked the opinions of Lords Goddard and Porter in Best v. Fox, [I9521 A.C. 716, that "consortium is indivisible."

In the metropolitan area, at least, accident victims should be treated in special accommodation. Provision of special equipment and out- patient attention for the rehabilitation of victims is necessary. Where, outside the metropolitan area, treatment is given in hospitals and by private medical practitioners, this should be paid for by the Fund. Provision of hospital and medical treatment should continue throughout the lifetime of the victim in respect of any condition which is substantially the result of his injuries.

Reform of the tort rules should exclude damages for pain and suffering and shortened expectation of life and should clarify the head of damages for loss of earnings. Some adjustment must be worked out between damages awarded the victim in respect of his anticipated life span and damages which should be available to his dependants when death finally results from his injuries. Attention should be given to the present manner of assessment of damages for death. The Court should have power to direct that the sum awarded to the victim should be paid to the Public Trustee to be held by him in trust for such purposes as the Court directs.2s4 The Court should - - have power at any time within a specified period after the accident to review an award on the application of the victim or a dependant of the victim.

Assessment of damages by reformed tort rules has the advantage of being tailor-made. For that very reason it is immensely more difficult to calculate the probable cost, even when we exclude judicial idiosyncracy, than it is to calculate the probable cost of off-the-hook assessment under the new rules suggested below. Careful sociological research, following up all victims over a number of years, would be a necessary preliminary to any reliable calculation. Valuable material is probably available in the files of the Motor Vehicle Insurance Trust.

The following outline of new rules is suggested:285

( I ) During total disability a sum determined by the age of the victim and the size of his family should be paid periodically to the victim.

284 Walker (Quantum of Damages, [I9531 SCOTS L.T. 157) considers that an annuity is preferable in many cases. He suggests the court should assume a function similar to cura prodigi. There may be a useful model in the New Zealand Deaths by Accident Compensation Act, 1952; see the comment in (1954) 30 N.Z.L.J. 89.

285 The writer's proposals differ in important respects from the recommendations of the Columbia Report; for the Columbia recommendations see A Note on the Automobile Accident Compensation Plan, (1936) 3 LAW c CONTEMP. PROB. 579. The provisions of the Saskatchewan scheme are noted below.

(2) During partiaa disability, a portion of the total disability sum should be paid periodically to the victim; the amount of the payment should be the difference between that sum and what the victim earns or is able to earn.286

( 3 ) At any time after two years from the happening of the accident the Fund may, in lieu of continuing periodical payments, pa-y to a victim who is, in the view of the Court or Board, totally disabled, the difference between what he has already received and a capital sum determined by the age of the victim and the size of his family; or to a victim who is in the view of the Court or Board partially disabled, the difference between what he has already received and a proportion of that capital sum, the proportion being fixed by the Court or Board having regard to the degree of disability.

(4) I n the event of death resulting from the injuries at any time prior to payment of a capital sum to the victim, a capital sum should be paid to or, for the benefit of any widow and/or dependent children.287

(5) The Court should have power to direct that any of these capital sums should be paid to the Public Trustee to be held by him for such purposes as the Court directs.

(6) All these sums, periodical and capital, should be paid without means test.

( 7 ) In the absence of express provision, determination of entitlement and of the amount thereof should be made by the authority controlling the Fund subject to an appeal to the Court or to a Board specially constituted.

Tentatively, the writer suggests the following contents for the outline : 288

286 Under the Saskatchewan scheme the amount is the difference between (a) the average weekly earnings of the claimant for the twelve months

prior to the accident and the amount which he earns or is able to earn weekly following the accident; or

(b) $20.00 a week and the amount which he earns or is able to earn weekly following the accident,

whichever is the less: the amount is payable for 52 weeks. Special provision is made for housewives and unemployed persons. Lump sum benefits are payable for loss of faculties or limbs: Green, loc. cit., at 44-46.

287 Under the Saskatchewan scheme lump sums are payable on death to the "primary" and "secondary" dependants of the deceased, and to the parent of a deceased child. A fixed sum is payable in lieu of funeral expenses: Green, loc. cit., a t 46-47.

288 The writer does not wish to be finally committed to any figures, but it is important to be able to give some indication of cost. The sums suggested are modest and exclude all but economic loss. Sums of the order of jury

(A) The periodical sum. Persons under 16 . . . . . . . . . . . . . . . Persons aged 16 . . . . . . . . . . . . . . . Persons agtd 17 . . . . . . . . . . . . . . . Persons aged 18 . . . . . . . . . . . . . . . Persons aged 19 . . . . . . . . . . . . . . . Persons aged 2 0 . . . . . . . . . . . . . . . Persons aged 2 I and over . . . . . . . .

Plus, in respect of a. wife, £3 per week and, under 16, 2 I per week.

(B) The capital sum for total disability.

. . . . . . Nil.

. . . . . . £2 per week.

. . . . . . £3 per week.

. . . . . . £4 per week. £5 per week. . . . . . .

. . . . . . £7 per week.

. . . . . . £9 per week. in respect of each child

Persons under 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons between 20 and 30 . . . . . . . . . . . . . . . . . . . . Persons between 30 and 40 . . . . . . . . . . . . . . . . . . . . Persons between 40 and 50 . . . . . . . . . . . . . . . . . . . . Persons between 50 and 60 . . . . . . . . . . . . . . . . . . . . Persons over 60 . . . . . . . . . . . . . . . . . . . . . . . . . . .

Plus, in respect of each dependent child under 5 . . . . . . . . . Plus, in respect of each dependent child between 5 ant1 10

Plus, in respect of each dependent child between 10 and 12

Plus, in respect of each dependent child between I:, and 14 Plus, in respect of each dependent child between 14 and 15 Plus, in respect of each dependent child between 15 and 16

( C ) The capital sum for death. To a widow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . £2,000

To a widower . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nil.

To children whose mother is the victim and who are dependent on a surviving father, one-half of the capital sums payable in respect of dependent children under Schedule "B." To children whose mother is the victim and who were dependent on the mother, and to children whose father is the victim and who were dependent on the father, the capital sums payable in respect of dependent children under Schedule "B."

verdicts in New South Wales and Victoria would impose an impossible burden on the community if they were awarded not as prizes to those who win through, but to everyone injured. K~teley v. .4llport, (1954) 54 State R. (N.S.W.) 17, is a significant case because the Court brushed aside the 'hocus pccus and gave thought to the cost to the community of juries giving "extravagant rein to their sense of power." See the comment by Hutley, Negligence and Social Security, (1954) 28 ALJST. L.J. 74, and cf. Jaffe. Damages for Personal Injury: The Impact of Insuranre. (1953) 18 LAW & CONTEMP. PROB. 219.

Competition with other provisions for compensation of victims. The scheme the writer has proposed will inevitably come into

competition with ( i ) gra.tuitous aid given from charitable motives, (i i) private provision: against loss, made by the victim, whether in the form of accident insurance, membcrship of a voluntary scheme, or a contractual right bought from his employer, and (iii) State provision by way of social insurance. Adjustment between the writer's schemezsg and these other provisions must be expressly determined.

The writer suggests that generally medical and hospital treatment and payments under the scheme should be provided or made without regard to any treatment or payment otherwise received by the victim. Thus charitable motives in providing gratuitous aid will not be defeated. The, victim will benefit from his investment in accident insurance, from his investment in a voluntary scheme or from his purchase of a contractual right, if the policy, scheme or contract provide for benefit. The insurance policy almost certainly will pay; the voluntary scheme2" may not; the employment contract will very likely pay. The complications arising from the employer's action for loss of services'"' will not arise, since, it will be remembered, tort action's arising out of motor vehicle accidents on the highway will have been abolished.

The Common\vea.lth Social Services Consolidation Act and the National Health Act deprive the victim of any payment he might have received from the Commonwealth by way of sickness benefit, invalid pension, medical benefit or hospital benefit.292

Compensation under the Workers' Compensation Act should only be available as to any excess over the amount received under the writer's scheme. The employee will not ha,ve a common law action,

289 The writer has examined elsewhere the existing adjustments between tort damages and these other provisions: (1955) 28 AUST. L.J. 563.

290 Such as the Hospitals Benefit Fund of Western Australia. Discussed in the writer's article, loc. cit., at 564-570.

292 Social Services Consolidation Act 1947-52, sec. 115 as to sickness benefit; sec. 25 (1) (d) as to invalid pension, sec. 135R as to rehabilitation and training allowance. Wives' and children's allowances are dependent on the victim being an invalid pensioner: secs. 32 and 34. Payment to the widow under the writer's scheme will preclude her from receiving a widow's pension: sec. 63. National Health Act 1953, sec. 21 as to medical benefit ("Commonwealth benefit") and sec. 39 (5) as to hospital benefit ("hospital benefit" or "additional benefit"). The "loss" to the State of Commonwealth moneys which would otherwise have been paid is a matter to be adjusted between the State and Commonwealth. Governments. Already the State "loses" where workers' compensation payments preclude payments under the Social Services Consolidation Act or National Health Act.

for the writer's scheme invoives the abolition of tort actions for damages caused by or arising out of the use of a motor vehicle on the highway.

Control of behaviour on the highways. The writer's concern in this article has been with the problem of

ameliorating injuries that in fact occur, but he certainly would agree that prevention is better than cure. Prevention of motor vehicle accidents is a task for traffic eng ineer~ ,~~3 for motor vehicle manu- f a c t u r e r ~ , ~ ~ ~ for those who train and those who test drivers,296 for those who have the opportunity through publicity or personally to educate road users to observe standards of behaviour, for those who make rules as to behaviour on the highways, and for those who enforce the rules.

I t has been submitted that the tort rules as to liability, as they operate in the context of the present Act, do not prevent accidents, and that nothing will be lost by abandoning them. What the tort rules fail to do is more likely to be achieved by the criminal law. The criminal law, generally a t least, seeks to enforce standards of behaviour before men are killed or injured, and punishment is related to the danger to human life which the offender's conduct involves. This is not to say that our criminal law techniques are beyond betterment. The criminal law in some of its provisions does wait until the offender kills or injures and then, like the tort rules, measures his punishment by the nature and degree of the harm that he has caused. Judges and lawyers devote much time to condemning the perverseness of juries

293 T h e use in America of japonica to provide safety fences has been much in the news recently. Statistics from all countries agree that most accidents occur on straight stretches of highway.

294 The statistics in Appendix "A" indicate that only something over 5% of casualty accidents are caused by vehicle defects, but vehicle design may well play an important part in limiting the severity of injuries.

296 American statistics indicate that 115th of the drivers cause 415th~ of the accidents: McNiece and Thornton, Automobile Accident Prevention and Compensation, (1952) 27 N.Y.U.L. REV. 585, at 591. There is an important correlation between accident-proneness and qualities of vision: ibid., at 593. Studies of accident-proneness may be used to reinforce the writer's con- demnation of the forensic rites. I t may be that accident-prone drivers should not drive cars, despite the fact that we license them to drive and are careful to relieve them of liability for any harm they do to others: but are we to say that accident-prone pedestrians should confine themselves to barracks? Cf. James and Dickinson, Accident Proneness and Accident Law, (1950) 63 HARV. L. REV. 769: the criticism voiced by Jaffe, Damages for Personal Injury: The Impact of Insurance, (1953) 18 LAW &

CONTEMP. PROB. 219, at 220, that the authors' thesis involves determinism "in a new and fashionable garb" is sound. But there is much that is valuable in the article.

who will not convict where charges of manslaughter or of "negligent driving causing death" are laid. In the writer's view this perverseness of juries is an expression of a sound moral sentiment: That it is nonsense to measure the accused's conduct and his punishment by the unintended consequences which happen to have followed the accident. There may be many illustrations in primitive law of judging actions by results, but is the quality of dangerous driving any more morally base because it kills?296 Yet the learned judge, who has indicated that he would otherwise have imposed a light punishment, will remind the accused that his driving resulted in death and proceed to pass sentence of a long term of imprisonment. And on another day he will tell another accused how lucky he is that he did not kill someone for if he had killed he would have got the punishment he deserves.

There is room for a fundamental re-thinking of our criminal law in the field of control of behaviour on the highways. Quantity of traffic rules does not guarantee effectiveness. Indeed the increasing proliferation of rules, until recently treasured up by the enforcement personnel and unknowable by those whose conduct it was sought to regulate, tends to decreasing effectiveness. It is elementary jurisprudence that the effectiveness of a rule of the criminal law is a function of publicity, determinateness, and power. The means of mass com- munication must be exploited to the full in teaching the rules; the rules must be so framed that those to whose conduct they refer may know as precisely as can be what they may do and what they may not do, and a well trained force must police the observance of the rules.297

296 Proposed legislation in England to make it a special offence to kill while driving dangerously drew forth the comment from Lord Hailsham that it was "illogical" to attach a special penalty because death results: (1955) 219 L.TIMES 91. Even more "illogical", however sound in law, was the interpretation placed by Walker J. and the Western Australian Court of Criminal Appeal on sec. 291A of the Western Australian Criminal Code, which would have meant that i t would be a serious criminal offence to kill when guilty only of that degree of negligence which would involve liability in a tort action. The High Court, upholding an appeal, insisted that the degree of negligence required by sec. 291A was the same as for the crime of manslaughter: Callaghan v. The Queen, (1952) 87 Common- wealth L.R. 115. The inarticulate premise was no doubt a desire to avoid the consequence that civil negligence, involving no penalty on the offender because of insurance (and, in the case of contributory negligence prior to 1147, no penalty even on the insurer), should be converted into a serious criminal offence merely because death happens to result.

297 Behaviour on the highways is a field where social law, in Ehrlich's sense, gives but little aid to the criminal law. Why simple courtesy is forgotten on the highways is a problem for the social psychologist. Perhaps he may be able to show the way to the creation and fostering of a social law

The writcr's scheme wii! involve a lizking of prevention and compensation if the suggestiol. is adopted that the fund should in part be financed from fines. Is there any other way in which the scheme of compensation can make a contribution to the prevention of accidents? Is there anything the scheme can do which other techniques cannot do as well or bctter? Granted that tort liability is futile, may it not be convcnicnt to enforce rules of conduct by denying compensation to a victim who has broken a rule, or by recovering over from a motor vehicle owner or driver the compensation paid in respect of an accident which resulted from his breach of a rule? Provisions in the present Act which may be regarded as punishing by recovery over for breach of rules of conduct are, it has been seen, crude in the extreme.""8ut may there not be, in those provisions, the germ of a valuable idea? The writer's answer is, save in one respect, a confident negative. Workers' compensation legislation denies compensation to a worker whose injury has resulted from his own "serious and wilful mis~onduct",~~%nd it is proper to deny compensation to the victim of a motor vehicle accident who has wilfully courted injury. The danger is that the form of words used may bring in by the back door the tort rules which have been expelled by the front. At one stage it looked as if just this would happen in the interpretation of workers' compensation legislation. But the writer agrees that there may be people with warped minds who will seek compensation by inflicting injuries on themselves, and it may be that the only way to protect such people against themselves is to deny them the prospect of compensation. And where the injuries result from the fact that the victim was drunk or might be convicted of a serious traffic offence compensation must be denied.300 The community will insist on this expression of the sentiment of retribution. There seems to be no way of avoiding the consequence that, in cases where there have been no criminal proccedings, a civil tribunal may have to determine whether or not the victim is guilty of a criminal offence. Those in charge of the fund will need to obtain a declaration of "serious and wilful misconduct" before denying compensation. Beyond this the writer

29s Recovery over under sec. 7 (5) may punish the innocent. The guilty may escape because the vehicle was uninsured (supra, at 252-253) . Recovery over against the unauthorised driver may also punish the innocent (supra, at 218, note 72).

299 Workers' Compensation Act (Western Australia) 1912-1953, sec. 7 (2) (c) . 300 The Columbia Report excludes compensation where the person injured

or killed wilfully intended to cause injury to himself or to another: A Note on the Automobile Accident Compensation Plan, (1936) 8 LAW & CONTEMP. PROB. 579. at 581.

rejects punishment by denial of compensation or by recovery over.301

Denial of any compensation and recovery over of the whole of the loss is clearly unacceptable because punishment is then unrelated to thc moral quality of the conduct.302 Denial of compensation in part or recovery over of part of the loss still measures punishment as a fraction of a loss whose amount may bear no relation to the moral quality of the conduct. There will have to be a. judicial finding of breach of the rule and of how much of the loss is the proper punishment. It is submitted that control of the fund does not import competence to select the occasions when proceedings should be taken. The Trust has always had power to take proceedings to deprive dangerous drivers of their licences, but the power has been virtually unused.303 There is a very real risk that the power to take such proceedings may be used by those who control the fund simply as a weapon with which to force thc victim to accept something less than it was intended he should have. If the assessment of the amount of compensation to be denied or to be recovered is to be incidental to a conviction following normal criminal process, nothing will have been done which is not better done by the writer's suggestion that all convictions for offences involving risk of causing personal injury to someone on the highway shall involve compulsory contribution to the fund.

In any event the writer doubts the effectiveness of any control of behaviour on the highways which depends on a rule which is

801 For reasons similar to those which follow the writer also rejects the devices of surcharging premiums and requiring the insured to meet the first fx of any loss subsequently caused. The Saskatchewan Government Insurance Office has power to surcharge; any person aggrieved may appeal to the Rates Appeal Board: Green, loc. cit., at 41-42.

302 The Saskatchewan scheme, it is true, denies any compensation to persons who have been guilty of certain kinds of behaviour (driving without an operator's certificate, engaging in conduct contrary to the criminal law, riding otherwise than in seating accommodation or area designed for load, taking hold of a vehicle for purposes of being pushed or pulled thereby), and provides for recovery over against persons guilty of certain kinds of behaviour (causing an accident by fault in operating a vehicle while not authorised and qualified by law to drive, or in operating in a manner or for a purpose contrary to the criminal law).

303 Sec. 18. Complaint is made to a court of summary jurisdiction and the court may disqualify from holding and obtaining a licence where it is proved to the satisfaction of the court that the defendant is likely, in the event of his continuing to drive motor vehicles, to endanger unduly the safety of the public. See also New Zealand Act, sec. 76; Tasmanian Act, sec. 72; South Australian Act, sec. 70k; Victorian Act, sec. 29. All of these provisions, the writer is informed, are virtually dead letters. Where there are a number of insurers in competition for business, failure to use the power may be explained on this basis; but this is not the situation in Western Australia.

enfored against the offenuer only when injury is caused. I t is true that the enforccrnent of any iule is contingent on the oflendcr being "caugl~t," but there is a difference in point of the psychology of t5e offcnder betwccli the "luck" of escaping a policeman and the "luck" of escaping an accidcnt. Perhaps it will be said that the sacrifice of effectiveness is made in the interest of individual freedom, that, for example, the driver of the unsafe vehicle should be able to say to the policeman: "Mind your own business until I hit somebody, then it will be time enough for you to interfere." In fact, of course, individual freedom of this order has long since gone, for any kind of conduct which is likely to be the condition of denial of compensation or recovery over is already an offence independently of the happening of an accident.

Summary of nem machinery for compensating victims.

( I ) Repeal of the present Act.

(I) Accident insurance to cover all injuries caused by or arising out of the use of motor vehicles on the highway.

( 3 ) Abolition of tort liability in respect of injuries caused by or arising out of the use of motor vehicles on the highway.

(4) The income of the insurance fund to be derived from premiums paid by motor vehicle owners and motor vehicle drivers and from fines imposed on persons who are guilty of offences which involve risk of causing personal injury on the highway.

(5) Hospital and medical treatment and rehabilitation training of victims to be financed by the insurance fund.

( 6 ) Payment by the insurance fund of monetary compensation to be assessed either by reformed tort rules or according to a tariff scheme.

( 7 ) Assessment of monetary compensation to be made ~vithout regard to the means of the victim or to any payment received by him from any other source.

(8) Punishment generally by criminal la,w process and not by denial of compensation or by recovery over; compensation should be denied only where the victim is guilty of serious and wilful misconduct.

ROSS PARSONS."

.B.A., LL.B. (Sydney); lecturer in Law, University of Tasmania, 1947; senior lecturer in Law, University of Western Australia, 1948-; awarded an Austra- lian National University research scholarship for 1951 and 1952.

Appendix "C."

THE MOTOR VEHICLE INSURANCE TRUST

66 ST. GEORGE'S TERRACE, PERTH

INSURANCE POLICY ISSUED UNDER THE

MOTOR VEHICLE (THIRD PARTY INSURANCE) ACT, 1943-48

THE MOTOR VEHICLE INSURANCE TRUST AGREES subject to the limitations, warranties and conditions herein contained and to the provisions of the said Act to insure the owner of the motor vehicle described in the Traffic License issued herewith and any other person who drives such motor vehicle, whether with or without the consent of the owner, in respect of all liability for negligence which may be incurred by the owner or other person in respect of the death of or bodily injury to any person caused by or arising out of the use of such motor vehicle in any part of the Commonwealth during the period from the date of the issue of this Policy to the date of expiry of the said Traffic License.

LIMITATIONS.

The liability of the Trust is limited as follows: - ( a ) In respect of any claim made by or in respect of any passenger

carried in the vehicle-£2,ooo.

(b) In respect of all claims made by or in respect of all such passengers-£ro,ooo.

(c) The abovementioned limits shall be inclusive of all costs in relation to any such claim or claims.

WARRANTIES.

The owner warrants that the vehicle will not be-

( a ) used for any other purpose than that stated by the owner in his application for this Policy;

(b) driven in an unsafe or damaged condition;

(c) driven by or in charge of himself or any other person who is unlicensed to drive or who is under the influence of intoxicating liquor provided that it shall be a defence to any action in respect of the warranty contained in this sub-clause

if the owner proves that the vehicle was so driven or in charge of such other person without his knowledge or consent.

CONDITIONS.

I . The owner and any other person claiming indemnity under this Policy shall comply with the provisions of Sections 10 and I I

of the said Act.

2. Sections 7 (5) and 15 of the said Act are deemed to be incorporated in this insurance.

3. The Trust is entitled to all rights remedies and benefits which may accrue to it by virtue of the said Act.

4. This contract of insurance is subject to the provisions of the said Act.

DEATH AND INJURY ON THE ROADS.

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Transcript of DEATH AND INJURY ON THE ROADS.