Going down the No-Fault road

Very recently, there were reports appearing in the press where advocacy groups have expressed their disappointment in the tardiness of the judicial system in having persons who were responsible for the carnage on the nation’s roads brought to justice. It was even suggested that the issue of ‘‘no-fault’’ should be revisited as this could be a solution to the expensive and time-consuming ‘‘tort’’ system under which Trinidad and Tobago and the rest of the English-speaking Caribbean currently operate. From what can be gleaned from the newspapers, it would appear that in the first instance the investigations by the police were far from satisfactory to the point that one would have had the feeling that no charges would have been laid and the file closed without further police action. Even after charges have been laid, the case is called and routinely postponed without the appearance of the police complainant over many years and ultimately can be dismissed under the present court system.

Firstly, it should be noted that a third party civil action does not have to await the outcome of the criminal matter. However, in reality, the civil action could be affected since the plaintiff must establish that the defendant was negligent and that will rest on the evidence of witnesses who might be just be as uncooperative in the civil as well as the criminal matter. The current legal system requires the proving of negligence and thereafter the quantification of loss of earnings as well as non-economic losses eg pain and suffering. It is clear that the present judicial system is both inefficient and very costly and advocates of the ‘‘no fault’’ system have suggested that a change to thisp ‘‘no-fault’’ system can bring about relief to claimants who will receive speedy settlement where each insurer will treat with his insured without regard ‘as to who was to blame.’’

The Office of the Attorney General and Ministry of Legal Affairs in 2001 invited views from the general public on a discussion paper entitled “Alternatives to Litigation in respect of Personal Injury Compensation for Victims of Motor Accidents.”  There  was a working paper which sought to recommend the introduction of a Motor Insurance Bureau and a system of No-Fault Insurance which would simplify the process of providing compensation and benefits to persons injured in motor vehicle accidents. The insurance industry held a symposium on the issue of ‘‘No-fault’’ where an expert familiar with the Canadian ‘‘no-fault’’ insurance system was a key presenter. While every system has some benefits it was clear that the ‘‘no-fault’’ was not a solution and in fact could be worse than the system that it was proposing to replace and indeed create more problems than it would solve.

One has to understand the history of ‘‘no-fault’’ which started in the 1940’s but became more widely accepted in the 1970’s and it was intended to solve the problems of high premiums, inefficient compensation to victims, lengthy litigation and the burdens on the courts. These are all familiar concerns and continue to be relevant up to the present time. After more than 30 years of “no-fault” and derivatives of the system, more and more jurisdictions that embraced this approach were moving back to the tort system. In fact, there is no movement worldwide to move away from the tort system inspite of its many inefficiencies but rather the drive is towards making the court system more efficient and less “time wasting.” There  were a number of negatives with the ‘‘no fault’’ system in particular it dealt with low level settlements and the giving up of rights to sue without making any impact on the reduction of matters before the court and indeed empirical evidence was produced that showed increase in road traffic accidents, especially reckless driving.

It is unfortunate that the government brought up the issue of “no-fault” together with the Motor Insurance Bureau since these are in no way related and one is not dependant on the other. Indeed, the Motor Insurance Bureau is a missing link in the administration of the motor vehicle (third party risks) since this entity will provide compensation to victims of accidents in the case of ‘‘hit and run’’ drivers and persons who did not have the required insurance coverage. At the present time these victims are unable to receive any compensation and therefore they have a legitimate right to feel aggrieved that they have been let down by the legal system through no fault of theirs except being in the wrong place at the wrong time.

There is no doubt that the entire judicial system needs a review that will take it into the 21st century but it requires leadership which is so lacking in all aspects of life in Trinidad and Tobago. We are a country of talkers and complainers but certainly not a people committed to action. We are good at all the reasons why things cannot be done rather than trying to clear the bottlenecks to do and achieve. The present system entrenches the litigation process of  engaging instructing attorneys, Junior and Senior attorneys which leads to the high legal expenses so the fusion of the legal system is not working. It is only the rich who can afford a chance at justice. Nevertheless, there have been recommendations to improve the system of justice, including :

• Courts dedicated to accident claims which deal only with both liability and awards at the same time rather than determining liability and then assessment at a future date;
• Alternative Dispute Resolution strategies;
• New Rules of Court and Case Management system that will bring an end to the wastage of court time in agreeing evidence in advance and only arguing areas of dispute.

This will eliminate the calling of witnesses to testify unless absolutely required as there is a general unwillingness for persons to attend Court who see this as a waste of their time as invariably the matter is postponed. It is true that the system is broke and needs fixing but we must not hurriedly move to a system that it unlikely to solve the problems but indeed add to the frustration of the public whose tolerance level is now sorely tested. We must address the inefficiencies in the present legal system.

E-mail:daquing@cablenett.neta