Welfarist and Social Solidarity Principles in the 1970s

Among academic writers, Friedmann and Williams argued in the 1950s that the growth of the welfare state raised significant political, and distributive questions for the law of tort. Tort law was one means through which to achieve the goals of distributive justice, particularly by compensating accident victims. Atiyah in the 1970s drew attention to the importance of insurance, but noted that little was known by tort lawyers about how the insurance market dealt with claims. He also discussed non-tort compensation schemes, including those for criminal injuries and industrial accidents. The book sought to compare the respective levels of compensation obtained by victims under the different schemes, and showed how many inconsistencies were thrown up by the failure to co-ordinate schemes. Having surveyed various aims of compensation, he concluded that compensation for personal injuries should not be handled through tort law at all, but should be replaced by social security compensation. In his view, the fault principle was inadequate, since it led to some being over-compensated and others under-compensated. In an age when insurance made fault often meaningless, it was a better idea to reform the entire law.

In France, Tunc (1965) argued that, since road accidents rarely involved real moral blame, there should be compensation without proof of fault for the victims of accidents. France had moved to risk-based liability, but the difficulty and cost of suing the person responsible for the car in court was still a problem for the victim. These ideas were rejected for a long time, but were eventually accepted in 1985 by the French legislature, which replaced delictual liability with an insurance-based system. [See The Roads and Rail case study]