Road Accidents: Fault remains important in England

English law has remained based on fault. Even today, the victim of a road accident has to prove that the driver of a car was at fault. But English law uses an objective standard of fault − the driver is expected to follow the standard of the reasonably competent drive. So a learner driver who injures her instructor will be held to be at fault because she did not drive like a competent, experienced driver. In some cases, the court will reverse the burden of proof. As long as the injury normally does not happen without fault, then the court will presume the driver was at fault and expect him to show how the accident occurred.

In 1978, a Royal Commission recommended that road accident victims should benefit from a social insurance system, being compensated for any injury on the roads without the need to go to court. But this was not accepted. A 1991 proposal from the Lord Chancellor for a limited no-fault system also was not accepted.

Why is English law so different? The key seems to be the important place of private insurance. By the early 1920s, 95% of drivers were insured for claims that might be made by third parties, and this became compulsory in 1930, earlier than in many European countries. In 1946, the insurance companies agreed with the government that they would set up a fund to pay the damages awarded against drivers who were uninsured. The existence of such insurance cover made it possible for the law to extend protection by allowing wives to sue their husbands if they were the driver and children in the womb to sue their mothers. Judges are also aware of insurance when they interpret the law. As Lord Denning said in 1973, ‘The damages are expected to be borne by the insurers. The courts recognize this every day. They would not find negligence so readily - or award sums of such increasing magnitude - except on the footing that the damages are to be borne, not by the man himself, but by an insurance company.’

The other factor is the existence of the National Health Service and Social Security after 1945. Uninsured victims such as cyclists and pedestrians would get free treatment on the NHS and would get some compensation for loss of earnings from the social security system. That provided a basic minimum protection for victims.