Exploring the Domain of Accident Law: Taking the Facts Seriously

Injuries stemming from automobile accidents are the most numerous and costly of all personal injuries in North America. They are also one of the most fertile areas of current experience and debate regarding the role of the tort system and its alternatives. In 1989, roughly 5 million Americans experienced auto-related injuries, 47,000 of which were fatal. ¹ In Canada, more than 200,000 people were injured in motor vehicle accidents in 1985 and more than 6,000 died. ² To put these figures in perspective, between 1945 and 1985 more Canadians died as a result of automobile accidents (168,319) than the combined total of Canadians killed in both world wars (102,703). ³

The costs of these injuries are enormous. In 1985, the economic costs (medical expenses, wage losses, and other out-of-pocket expenses) of automobile injuries in the United States am estimated to have totaled $50 billion, ⁴ and another estimate assessed the 1986 costs at $74.2 billion. ⁵ Further, despite steady decreases in the annual number of traffic fatalities in Canada and the United States since the mid-1970s, injury insurance costs have risen sharply during this period, increasing by about 140% in the United States from 1977 to 1987. ⁶

Largely in response to liability premium increases, governments and policy makers have shown renewed interest in no-fault alternatives to tort law in this area, after a long period of inaction following the initial enactment of no-fault schemes in 16 U.S. states and the province of Quebec between 1971 and 1977. Ontario adopted a no-fault regime in 1989, and existing approaches to preventing and compensating automobile injuries have come under increasing scrutiny as policy makers seek empirical evidence to guide current policy choices. This chapter reviews this evidence on the tort system and on alternative methods of injury prevention and compensation.

Among law and economics scholars, the main justification for tort law in the automobile context is the incentives for accident prevention (deterrence incentives) that civil liability is said to create. ⁷ This section considers the theoretical basis for this claim and examines the extent to which the existing motor vehicle liability regime in

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