258.     Some of the needs for which maintenance of income under a plan for social security is required, may arise through causes which give to the person in need a legal claim against another person.    These cases are of three main types:—

(i) Industrial accidents, in respect of which an injured employee, apart from the Workmen’s Compensation Acts, may have a claim against the employer at common law.

(ii) Other accidents, in respect of which the person injured may have a claim against another person as having caused the accident by negligence. Such cases arise mainly, though, not solely, out of traffic by road; in relation to one form of road traffic, by use of motor vehicles, there are special statutory provisions to secure insurance against such liabilities.

(iii) Breaking of marriage otherwise than by death, under conditions giving the wife a continuing claim to maintenance—after divorce, separation or desertion—against the husband.

Each of these types presents special features and involves varied questions of law and policy, too technical for exhaustive discussion here. In regard to each of them questions arise, under two distinct heads, as to which something should be said in general terms. How far should the possible existence of these other rights of the person in need of income affect his claim under the social insurance scheme? Should the developments now proposed in social insurance be accompanied by any change of these other rights?

259.    Under the first head, one general principle seems clear: The possible existence of an alternative remedy should not prevent an insured person from getting forthwith whatever social security benefits he would be entitled to claim if he had no such remedy.  The testing of any alternative remedy is bound to take some time; the needs of the injured person should be met at once.    Prompt maintenance of income is of the essence of social security.  The present arrangements under which the possible existence of a claim against an employer is ground for refusing sickness benefit to a disabled workman, should be ended.    So also should the requirement that an employee must elect between claiming under the Workmen’s Compensation Acts and claiming at common law.

260.    Another general principle also is clear.  An injured person should not have the same need met twice over.  He should get benefit at once without prejudice to any alternative remedy, but if the alternative remedy proves in fact to be available, he should not in the end get more from the two sources together than he would have got from one alone. This may mean one of two things :—

(a) that the third party remains liable to pay whatever is due from him as if there were no benefit, but that the injured person when he receives his damages refunds to the Social Insurance Fund what he has received as benefit.

(b) that the amount of the injured person’s claim against a third party is reduced by whatever he can claim as benefit.

Arguments can be advanced for each of these methods. On the one hand, it may be said in favour of the first method that there is no reason why a person guilty of negligence should pay less than he would otherwise, because the person injured by negligence is insured against injury. On the other hand, it may be said in favour of the second method, that if comprehensive provision is made by the State for injury, however caused, the damage done to the injured person by the negligence of the third party is only any excess of his actual loss over the amount of the State’s provision. There may even, as is suggested below, be a reason for saying that insurance provision should exclude altogether actions for damages in cases in which they could be brought now. This is a matter on which a different line can justifiably be taken in different types of case. The same rule, for instance, need not apply to industrial accidents as to other accidents, if the insurance provision made for them is different.

261.     There arises yet another practical question—as to whether it should be left to the injured person to pursue his alternative remedy, or whether the Ministry of Social Security should be entitled to take proceedings, either with his consent or without it.   This also is a matter on which different rules may well apply to different types of case.    In the third of the types named above, arising out of cessation of the maintenance due in marriage, the Ministry if, on a claim made, on it by the deserted or separated wife, it pays separation benefit, should be entitled, without requiring consent of the wife, to proceed against the husband for recoupment of its expenditure.    In the other types of case it is doubtful whether the taking of proceedings need become a function of the Ministry.

262.   Under the second head, a number of questions, some raising issues of general principle, some of them highly technical, call for examination.    There are respects in which it may be right, as an accompaniment to extension of social security, to change the general law of liability for civil wrongs.    It can be argued for instance that if comprehensive medical treatment is available for every citizen without charge quite irrespective of the cause of his requiring it, he ought not to be allowed, if he incurs special expenses for medical treatment beyond the treatment generally available, to recover such expenses in the action for damages.    It can be argued again, that if what is judged to be adequate   compensation   is   provided   from   a   Social   Insurance   Fund   for industrial accidents, irrespective of any negligence causing them, there is no reason why this compensation should be greater because the employer has in fact been negligent.   The .needs of the injured person are not greater.   With the inevitable uncertainties of legal proceedings, suits for heavy damages on the ground of negligence cannot escape having something of the character of a lottery.    In so far as danger of such proceedings is a penalty for negligence, it is more effective to make the penalty a direct one—of criminal proceedings undertaken by the public department responsible for securing industrial safety.   Employers can and normally will insure against civil liabilities; they cannot insure against criminal proceedings.

263.     In addition to the three principal types of case in which there may be alternative remedies a fourth type calls for mention, namely that of affiliation claims by unmarried mothers. This may affect and be affected by the proposals in regard both to maternity benefit and children’s allowances. The existing law and the practice of public authorities in regard to this matter may call for review in the light of the new position that will be created if the proposals of this Report are effected.

264.        It is not possible in this Report to do more than to raise these questions.   Considered answers can be given only after enquiry by some committee with technical and practical qualifications and with time to examine all the detailed issues involved

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