Vanderbilt Law Review


John G. Fleming

First Page



Throughout the common law world, as indeed elsewhere, our generation has been witness to an unmistakable, if not always consistent, trend of increasingly disassociating the administration of accident law from the philosophy of individual fault in favor of the collectivist principle of loss distribution, as evidenced in the movement towards stricter liability in litigation areas with a background of liability insurance. However debatable the measure of this reorientation in the United States,' it has taken very large strides in the several jurisdictions of the British Commonwealth where a pattern of loss allocation is now visibly emerging which, in many respects, bears but scant resemblance to the law of torts administered in the earlier decades of this century. This transformation has been particularly evident in the socially and statistically most vital fields of automobile and industrial accidents. Statutory abolition of the fellow-servant doctrine, the virtual atrophy of the defense of voluntary assumption of risk, introduction of comparative negligence and apportionment of loss in cases of contributory negligence, proliferation of industrial safety statutes opening a wide avenue for recovery against employers on the footing of negligence per se, and the active collaboration by courts and juries, under the overshadowing influence of compulsory insurance, in postulating at once the most exacting standard of conduct for defendants and the least for plaintiffs--these are some of the salient landmarks in the current process of eroding the fault dogma and replacing it by a new system of loss distribution aimed at accommodating the mid-century quest for social security within a still predominantly free enterprise economy.

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Torts Commons