Personal Injuries in the Twenty First Century: Thinking the Unthinkable
P. S. ATIYAH1
It is one of the functions of the academic lawyer from time to time to think the unthinkable, and to challenge some of the most fundamental assumptions of our legal system. Few assumptions are more basic than the idea that if someone wrongfully does you an injury you should be entitled to sue him, and to think of abolishing this right without providing any real replacement is to go about as far as one can in thinking the unthinkable. Yet I want in all seriousness to float the suggestion that the action for damages for personal injuries should largely be abolished, and its replacement left to the free market. I shall also offer some reasons for thinking that the next century may well see some moves in this direction.
One of the principal reasons why this whole idea appears so unthinkable is that it confronts two powerful, though to some extent rival, ideologies, at the root of much of the legal system, and of the law of personal injuries in particular. One of these ideologies is, if one may for a moment be a little simplistic, that of the political right. This ideology concentrates on the position of the defendant in a personal injury action, and is rooted in the idea of personal responsibility. Margaret Thatcher was often credited, when she was in office, with defending tort liability as a system of personal responsibility. Everyone must be answerable at law for his own actions, and to think of abolishing liability for personal injuries is to fly in the face of everything which modern conservatism appears to stand for. The other ideology which thinking the unthinkable also confronts is closer to that of the modern Labour Party and appears to be a form of consumerism. According to this view the victims of accidents causing personal injury are entitled to some form of benefit like a welfare benefit, though it needs to be much more generous than the welfare benefits of the modern social security system. These injuries are often caused, on this view, by large corporations or public bodies who need to be kept in check and made to pay for their____________________