No-fault compensation systems

In 1978 the Pearson Commission in the United Kingdom rejected a no-fault system in dealing with clinical negligence. While declaring the existing tort system as costly, cumbersome, prone to delay, and too capricious in its operation to be defensible, the commission rejected no-fault compensation on grounds of the difficulty in overhauling the tort liability system and the perceived difficulties in causation judgments.1 A general conservatism in the legal profession and opposition from the insurance industry were other factors. Much has changed in the NHS since then. The long overdue white paper on the reform of the clinical negligence compensation system is much awaited. Reforms to be considered include fixed tariffs for specific injuries, no-fault compensation, alternative dispute resolution, structured payouts instead of large one-off lump sums, and alternative non-cash methods of compensation such as home nursing care.2 The current system is based on the law of tort, which requires the claimant to prove harm caused by a breech of the duty of care. The adversarial and blame orientated nature of this system is not conducive to the culture of openness required by clinical governance and the NHS Plan. Supporters of …