ARTICLES

CAR ACCIDENTS: Does it matter who’s guilty?

YES, say most lawyers—the guilty must pay. NO, say others—we must not ruin the injured even when they’re guilty. But guilty or innocent, insured or uninsured, anybody can be ruined by a car accident under our present laws.

ROBERT WALKER July 16 1960
ARTICLES

CAR ACCIDENTS: Does it matter who’s guilty?

YES, say most lawyers—the guilty must pay. NO, say others—we must not ruin the injured even when they’re guilty. But guilty or innocent, insured or uninsured, anybody can be ruined by a car accident under our present laws.

ROBERT WALKER July 16 1960

CAR ACCIDENTS: Does it matter who’s guilty?

YES, say most lawyers—the guilty must pay. NO, say others—we must not ruin the injured even when they’re guilty. But guilty or innocent, insured or uninsured, anybody can be ruined by a car accident under our present laws.

ROBERT WALKER

HUMAN WRECKAGE is hard to hang a price tag on: car-accident injuries cost fifty-five thousand Canadians $320 millions last year, according to a presumably sound estimate, but this figure ignores the “pain and suffering” that juries sometimes value at thousands of dollars. The same victims collected $171 millions from insurance companies, and another $10 millions from unsatisfied judgment funds. The balance — $140 millions — the injured are paying, themselves, in expenses and lost earnings. This means that some of them have been wrecked financially as well as physically, whether they were to blame for their accidents or not and whether they carried liability insurance or not. And it raises questions about the law that matter to every Canadian who drives a car or rides in one.

The law (in every province but Saskatchewan) holds that the guilty party to an accident must pay; it doesn’t matter if he’s also the injured party.

Even when both parties arc insured to the hilt, if a jury decides that a crippled victim was h'mself to blame, this decision reduces or wipes out what he can collect; he is sometimes ordered to pay damages. This is the justice of guilt — an eye for an eye.

Is this kind of law acceptable in the “humane” Canada of the 1960s? Even if it is, does it work? Can a jury always tell who’s to blame in the splitsecond hairsbreadth accidents of today’s high-speed traffic? And what about the guilty driver who has no insurance and can’t afford to pay a plugged nickel to the innocent man he's injured?

Most Canadian lawyers say the law as it stands is acceptable, workable, and shouldn't be tampered with. A second, much smaller group of legal authorities say the law is outmoded, barbaric and unjust. These men maintain that anyone hurt in a traffic accident should get financial help, regardless of guilt or innocence.

The principle isn’t new. Workmen’s compensation is payment for injury without regard to fault. In Saskatchewan, a compulsory automobile insurance plan has been automatically paying every traffic victim in the province regardless of guilt, for fourteen years. The scale of awards, compared to what juries award elsewhere, is low — “a reasonable minimum.” But no injured person comes out of an accident empty-handed. This is compulsory loss insurance — not liability insurance, because liability or fault isn’t considered. Loss insurance, according to some experts, is the solution to injustices like the case a lawyer in Toronto recently told me about:

“I happened to be in Supreme Court the other day when a jury brought in its verdict in a traffic case. A very young barrister was acting for a very old man and his wife. The jury always assesses the damages, you know — whether or not it’s actually going to award CONTINUED ON PAGE 54

CONTINUED ON PAGE 54

Car accidents: Does it matter who’s guilty?

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M briI~~an~ chemist, he was paralyzed fo~ i~e . n * he $102,000 ue him

any money — and it assessed this one at twenty-five thousand, so the old people must have been badly hurt. But the jury also found them a hundred percent negligent. They didn't get a dime. Mind you. their case must have been hopeless for a jury to cut them oil like that, but it was terrible to see. The young lawyer went so pale, 1 thought he'd faint. The old couple went out crying."

"This notion of negligence — and the law of torts generally — is slightly schizophrenic." says C. A. Wright, dean of the University of Toronto law school. "First it says that damages are not a punishment, that they're merely an attempt to restore the victim — as much as money ever can — to his condition before the accident. But then it says nobody but the wrongdoer should pay; the guilty party must be identified so he can bear the loss. Why? We have criminal courts to punish the wrongdoer. including the traffic oflender."

Mr. Justice Samuel Hofstadter. a New York Supreme Court judge, says "the automobile itself" is the real cause of accidents: accidents are simply going to happen, even to reasonably prudent people. He quotes Dr. J. L. Malfetti. of the Safety Research Institute of Columbia University: "No driver, given cause enough, is immune to unsafe driving behavior. Anyone can be aflected by highway hypnosis on long dull stretches; or by losing the concept of speed and space when slowing from sixty miles an hour to twenty-five for an exit ramp; or by tension responses: or by fatigue."

Nonsense, reply most Canadian judges and trial lawyers. They insist that barring mechanical failure every accident is somebody's fault: the courts can decide whose fault, and the wrongdoer should pay. One lawyer describes compulsory loss insurance as "something to appeal to a law-school theorist who hasn't seen a courtroom in thirty years."

Contradicting him, Edson Livingston Haines, a courtroom lawyer and the fifty-three-year-old senior partner in a thirteen man Toronto law firm, is an outspoken champion of loss insurance although he is earning about fifty-five thousand dollars a year out of the law of negligence just as it stands. Moreover. Haines acts almost entirely for liability-insurance companies, which are bitterly opposed to any kind of compulsory automobile insurance — especially loss insurance.

After thirty years of negligence cases, most of them arising from traffic accidents. Haines says: "Theoretical!},, finding out who was at fault should be simple. The witnesses are all sworn to tell the truth, they report only what they saw and heard, and the court finds the facts. Actually, nothing of the sort happens. A trial is a highly complex and personal proceeding, in which the evidence is often in marked conllict. And juries aren't coldly logical at all times.

"If an Irish laborer with a whiski nose walks in front of a car driven by a carpenter. the laborer will be found partly at fault: he'll be lucky to get his hospital expenses.

“But if a father of four children wanders out and is killed by a departmentstore delivery truck, the jury will forget all about his negligence in its anxiety to take care of the family at the expense of a wealthy corporation."

Canadian organized - labor groups, which also want compulsory loss insurance. favor the kind of scheme the CCF government operates in Saskatchewan. Haines disagrees. “The private insurance companies can do it and they’re going to have to." he told me. "even if it takes twenty-five years. The thoughtful insurance men are beginning to see that compulsory insurance is inevitable, but they won’t tell you so for the record. They'd be drummed out of the lodge.

”1 know most senior counsel are opposed to loss insurance. They also opposed workmen's compensation, but it came. Every great legal reform has come from outside the practising profession. Trial lawyers tend to look down on people they call theorists. And trial lawyers. of course, have a financial stake in the status quo. Thousands of accident victims, meanwhile, must be suffering without compensation."

A maximum of $10,000

Part of the financial hardship—-what fraction no one knows—is inflicted by uninsured drivers, especially in Quebec, which has sixty thousand serious accidents a year, barely half its vehicles insured, and no unsatisfied judgment fund.

Outside Quebec, at one extreme, and Saskatchewan, at the other, the remain ing eight provinces have essentially the same system. Until you have your firs; accident liability insurance is optional, but eighty or ninety percent of drivers have some. Once you collide with some one and can't pay the damages, your license is suspended until you get insurance. Meanwhile, the victim is paid by the unsatisfied judgment fund — up to a point.

The most any provincial fund will pay to one injured person is ten thousand dollars, as Dr. John Cowie has fourni out. Cowie. a tw enty-eight y ear-old research chemist from Scotland, is described b the National Research ( ouncil as "one of the most brilliant younger scientists we've ever brought in." While Cowie was driving home on a murky November evening two years ago. an unemployed carpenter called Lorenzo Ciauvin drove into the young scientist's car from behind. Cowie's spine was broken. He spent tnc next year in hospital. He will be paralyzed from the waist down for the resi of his life.

Judgment was awarded to Cowie against Ciauvin for $102,000. But Ciauvin. although he was driving a new Oldsmobile. had no insurance, no money, no real estate and few prospects. The paralyzed scientist and his young wife have sharply reduced prospects themselves.

Louis Assaly, C owie's lawyer, collected the maximum ten thousand dollars from the unsatisfied judgment fund, barely outof-pocket expenses, and now says, "In

theory, you can chase the defendant for the rest of his life and garnishee his wages. You rarely do. What you can recover isn't worth the trouble. The debtor can go into bankruptcy and he can later be discharged—freed of all his earlier debts—at the discretion of a judge. In any case, the first ten thousand dollars Gauvin produces goes back into the fund."

Even in Saskatchewan, the problem of the terribly injured victim who claims an adequately high award is unsolved. A man with seventy-five percent-disability from spinal injuries, complete loss of hearing, and a four-square-inch scar, will collect only $3.900 automatically, without regard to fault. In 1948. two years after the scheme began. Saskatchewan added compulsory liability insurance to its loss insurance scheme, so that accident victims can now sue in court for awards above the arbitrary scale just as in any other province. But the limit for one injured person is still ten thousand dollars.

Recently, the manifest imperfections of the system I have been describing have prompted British Columbia to tighten its insurance laws, the Canadian Bar Association's Quebec branch to study the gaping differences in awards for similar injuries. and Ontario to appoint a select committee to study compulsory automobile insurance.

“I'm no lobbyist. I'm invited”

One of the most articulate and knowledgeable people to appear before the Ontario committee will be fighting compulsory insurance at every step. He'll be E. S. Piper, a Montreal lawyer who is both general manager and counsel for the All Canada Insurance Federation, an association of two hundred and twenty liability companies, none of which wants the new business compulsory insurance would bring. They say the people who aren't already covered are the irresponsible drivers, the bad risks, the people who have most of the accidents. The more accident claims that are paid, the higher everyone’s premiums will go. And customers already complain about the high premiums.

Piper appears wherever any legislative committee is looking into any aspect of liability insurance. "But I'm certainly not an insurance-company lobbyist." he says. ' Em usually invitai to tell our side to these committees and, in any event, my presence is never disguised or concealed.

"As for the idea that nobody is the wrongdoer in a traffic accident. I think someone must be. Last winter I myself skidded into an intersection in Montreal and hit another car. Now. 1 didn't mean to hit that woman's car and I wasn't driving carelessly. But. sure, I was the wrongdoer-—-on a road that icy. I should have gone a little slower.

“They talk about getting accident litigation out of the courts. Right now. perhaps two cases in a hundred get to court, and those two decisions give the adjusters a guide in settling the other ninetyeight claims promptly and amicably. With loss insurance, who's to decide how much the victim gets? A jury. In that case, every single accident claim will go to court—fifty times as many!

"In Saskatchewan, of course, they have a printed scale—so much for a lost leg. But what's a leg worth to a clerk and what’s it worth to Boom Boom Geoffrion? The same amount?

“The annual premium on a new car in Saskatchewan is forty dollars, but I hope nobody thinks a government-oper-

ated scheme could charge so little in the east. Look at Saskatchewan’s problem— only nine hundred thousand people, about three hundred thousand vehicles, maybe twelve thousand accidents a year. Compared, say, to Montreal, they have no traffic.”

Another opponent of compulsory insurance, Isadore Levinter, a veteran plaintiffs’ lawyer in Toronto, believes loss insurance is a threat to the jury system. He points out that jury trials, for practical purposes, have been non-existent in New Brunswick civil actions for twentytwo years. They're tried by a judge alone. "All this haste to get rid of the jury system is a mistake,” he says. "Sure, I know people will say, ‘Levinter makes his living from the jury system.' So indeed I do. Our whole concept of justice is rooted in the idea that an impartial tribunal decides who has injured whom. Then, the wrongdoer must compensate his victim, but neither party can ask for anything better than a jury trial — it brings the common sense of the community at large into the court.

"I once had a case against a big bus line, so the defense got a special jury— bank managers and the like—who could be expected not to hate big bus lines. They still gave my client thirty thousand dollars. The only legal people who distrust a jury are the professors, the theorists, who've never faced a jury.”

Mr. Justice C. D. Stewart, of the Supreme Court of Ontario, says, “The idea of loss insurance has made the most headway in the U.S. You’ll find many people who favor it have taken a course or done some teaching at the Harvard law school or some other American college. Down there, they have problems about which they’re justifiably worried, but we don’t have those problems in Canada.”

Court calendars are so crowded in the U. S., he points out, that it may take three years to bring a case to trial. If they could get rid of jury trials somehow, they could move faster. "You can get any case set down for trial in Canada within three to six months,” Stewart says, "and we don’t spend two days to pick a jury; we do it in fifteen minutes.

"We don't have doctors who specialize in testifying for the plaintiff or for the defendant. We generally get unbiased medical evidence. And, of course, we don't have the contingent-fee system; it’s illegal in Canada.”

The contingent-fee system means an

American lawyer can take a case on speculation. He pays the running expenses of the trial, with the understanding that he gets half or a third of whatever he can collect in damages. Some personal-injury trials in the U. S. have become sideshows, and plaintiff’s counsel is the barker. When a tennis player named Maureen (Little Mo) Connolly injured her leg in a collision, she retained Melvin Belli, a California negligence expert who has become the scourge of U. S. insurance companies. Belli actually showed the jury movies of Little Mo winning a tennis championship at Wimbledon, and she collected $95,000 though she doesn’t even limp from her injury. In a case where a woman’s leg had been cut off by a streetcar, Belli carried into court every day a leg-shaped package wrapped in butcher's paper. When he finally unwrapped it, he displayed the artificial leg his client would have to wear.

Mr. Justice Stewart says, “Canada doesn’t want this method of compensating traffic victims. But a printed scale giving everyone the same awards would be farcical.”

Edson Haines, the insurance company lawyer who favors compulsory loss insurance, concedes: “The proposal would be an experiment. And I don’t think anything like the Workmen’s Compensation Board, doling out money on a fixed scale, would work. Canadians don’t like that kind of strait jacket. I hate administrative tribunals and arbitrary boards myself; they tend to become tin gods. But surely the method of arriving at awards is a detail. I think, if we can say to the courts themselves, this man is to be paid, regardless of fault, we can then rely on them to assess damages. After all, the hospital bills are right there; you can add up what the victim has lost in wages; you can estimate his loss of future earnings if he’s disabled.

“This is the difference between assessing damages the jury can see, and deciding the question of negligence in an accident it did not see. The jury never tries the accident that happened; it tries the accident it hears about. I’ve heard five witnesses describe the same accident. You’d swear they were talking about five different ones. I don't mean they’re lying, but at sixty miles an hour the whole thing is over in the blink of an eye.

“Yet a man’s financial salvation or ruin may hang on what some surprised witness thinks he saw in that fraction of a second.” ★