FAULT SYSTEM OF ACCIDENT COMPENSATION IN THE ENGLISH LAW OF TORTS

An Examination Of The Fault System Of Accident Compensation In The English Law Of Torts And The Case For Reform

An Examination Of The Fault System Of Accident Compensation In The English Law Of Torts And The Case For Reform

Chapter I: Introduction

Two employees were moving stock in a furniture warehouse. Both were experienced employees who have rearranged stock hundreds of times. Large appliances were stacked four high on pallets. One of the clothes dryers on the top tier began to fall. Attempting to catch the appliance before it smashed to the floor, one employee suffered severe muscle damage to his back and shoulder. As a result of the injury, the employee is unable to return to his regular employment. The state sponsored Workers' Compensation fund has awarded him a long-term pension and is now paying for his retraining into a more suitable occupation. The employer is paying increased Workers' Compensation premiums for the foreseeable future. The employee is paying with the loss of his career and his health. All parties have lost as a result of the incident.

This brief description illustrates many of the central features of occupational accidents. For purposes of exposition, we highlight three of these features. First, although the outcome of the incident is clear in terms of both physical and economic consequences, exactly what happened is not clear. Were the appliances improperly stacked in the first place? Did the employees bump the tiers dislodging the dryer? Were other parties involved? Second, in a related vein, it is difficult to determine why the accident happened. Were the workers careless? Were they retrained? What differentiated this day from the hundreds of similar events in the past that did not result in an accident? Finally, most importantly for this review, in most cases, attempts to answer these questions are going to rely on interviews of eyewitnesses.

Given this emphasis on eyewitness testimony as a means to investigate and understand occupational accidents, it is perhaps surprising to note that our literature searches revealed two striking gaps. First, the literature on accident investigations is largely practitioner based and does not reference the empirical research literature on eyewitness testimony. Rather, the overwhelming impression is that accident investigators treat eyewitnesses as neutral and accurate recording devices. Second, the empirical research literature on eyewitness testimony has focused almost exclusively on memory for criminal events and has not considered generalizing to other relevant contexts such as occupational accidents.

Our purpose in this paper is to begin to rectify both omissions. First, we establish some context by reviewing the role of accident investigations in health and safety programming. Second, we briefly summarize the literature on eyewitness testimony with a specific focus on identifying similarities and differences between accident and criminal investigations. Finally, we attempt to bridge these literatures by framing specific questions for future research. It is our belief that both field of enquiry benefit from this endeavor. Accident investigations could be designed and conducted on a strong empirical ...