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Insurance and the Tort System
Abstract
This article examines Stapleton's view that insurance has lacked influence and been no more than a ‘makeweight’ argument in the development of tort liability. Looking at the wider context, the article describes the overwhelming importance of insurers to the litigation system and argues that all cases are affected by insurance practice. It distinguishes the effect of insurance upon judicial fact finding, on the one hand, and the development of common law rules, on the other. It examines the ability of insurers to influence legislation relevant to the tort system. It concludes that, if account is taken of all these areas, insurance has been of vital importance to the law of tort. Without it, the system of personal injury compensation would not have survived. This conclusion is reached even though insurance is largely ignored by the great majority of tort texts.
A You Tube lecture related to this publication is available at - https://www.youtube.com/watch?v=twriX4lp7V4
Legal realism is popularly known for its hostility to legal doctrine. In the familiar narrative, the realists showed that legal doctrine does not, and cannot, constrain judges from using existing legal materials to reach virtually any outcome they want. As such, doctrine only serves to hides and obfuscate what is better discussed openly. The purpose of this essay is to complicate this familiar story. I focus on one contemporary take on legal realism that argues that an open discussion of values will give the law greater determinacy. I counter this view, first, by showing that it does not, in fact, fit the views of the legal realists, but reflects a modern view that fits contemporary (American) legal discourse. I also argue that it’s very unlikely that such a view would improve the law’s determinacy, and that it is likely to have undesirable consequences. I then propose an alternative, which I trace to work by some of the legal realists. This approach gives a clear role to legal doctrine and, so I argue, is normatively more appealing than the view that minimizes the role of doctrine.
The chapter delves upon some recurring themes underlying Bussani’s scholarship—from his pluralistic view of legal sources, to his emphasis on people’s identity and affiliations as determinants of legal and disputing behavior—as far as the law of obligations in the West is concerned. In this light, the chapter scrutinizes the many ways in which people’s affiliations shape the legal contexts in which they live in, including the legal layers governing their obligations and the life cycle of their contractual and tortious claims. The aim is to provide a glimpse of the many paths of understanding that Bussani’s teachings open up for the study of Western contract and tort law.
Vicarious liability has a greater reach within both professional and amateur football than previously thought. The newly-expanded doctrine has opened up vicarious liability for amateur players, and within grassroots teams. A greater range of torts may also now trigger vicarious liability, such as acts of on and off-pitch violence. The Football Association will need to review the scope of the National Game Insurance Scheme, which significantly lags behind this expanded exposure to vicarious liability.
Examining vicarious liability in the context of football also reveals significant problems with the current approach to vicarious liability within unincorporated associations. This category developed in the context of institutional abuse within highly-organised religious institutions; it does not mean that this category of vicarious liability should be applied to grassroots sporting organisations in the same way. For instance there is scope to apply a different test at stage two. It is argued that the courts will need to tighten up this category so as not to unnecessarily expose members of grass roots organisations to vicarious liability which is able to be executed against their personal assets. Both amateur and professional clubs may also wish to carefully consider their selection of players.
Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike.
p>Frecuentemente se afirma que entre la responsabilidad civil y los seguros hay una relación intrínseca y que las normas de estos terminan afectando a aquella. Para verificar si efectivamente existe dicha relación, este artículo analiza el caso puntual de los efectos que ha tenido el seguro obligatorio de responsabilidad por accidentes de tránsito en el régimen inglés de responsabilidad extracontractual. Específicamente revisa la opinión manifestada por varios Lores de Justicia ingleses en sus fallos cuando analizan si a) ¿deben elevarse los estándares del deber de diligencia cuidado, porque al final la indemnización acordada será pagado por una compañía de seguros?; y b) ¿deben limitarse los perjuicios a indemnizar debido al impacto que la adjudicación de perjuicios elevados podrían tener sobre las primas de seguros y por lo tanto sobre la sociedad en general que las tiene que pagar?</p
What is negligence? Our answers to this are frequently misleading, because we turn all our attention on to what doctrine says rather than asking how it is actually used. So we routinely talk of personal liability, even though we know very well that individuals (as opposed to organisations, typically insurers) do not pay damages. We think of negligence doctrine as if it were applied automatically and without bias, when in fact the complex insurance arrangements involved have rather decided biases. And we treat the development of the law purely as a matter of evolving judicial thought, when in fact legislatures and insurers also routinely modify the system in response to new realities. The result is that fundamental change has occurred under the very noses of theorists, who still tell us that negligence holds individual defendants responsible for their wrongdoing (it does not) or that the economic effect of tort rules is to deter defendants (there is not much reason to think this is so). Why are the leading theoretical justifications of negligence – corrective justice, responsibility theory and economic theory – so dependent on myths? Is it because the myths do not matter? Or is it that, in fact, we have no good justification for the system as it works in practice at all – we have no good theory of why negligence makes sense because it does not, in reality, make sense?
Tort law and criminal law are closely bound together but their relationship rarely receives sustained and rigorous scrutiny. This is the first significant project in England and Wales to address that shortcoming. Building on growing interest amongst both academics and practitioners in the relationship between tort and crime, it draws together leading experts to chart the field and explore key points of interest. It uses a range of perspectives from legal theory, doctrine, legal history and comparative law to address some of the most important and interesting links between tort and crime. Examples include how the illegality defence operates to avoid stultification of the law, the difference between criminal and civil causation, how the Motor Insurers' Bureau not only insures but acts to enforce laws and alter behaviour, and why civil law only very rarely restores specific property but the criminal law does it daily.
This book provides a critical introduction to the English law of insurance contracts and presents the rules in both their legal and socio-economic contexts. The book first sets out the principles, moving on to develop the implications of certain rules in order to examine the importance of effective insurance and effective insurance law in modern society. Comparative reference is made to the corresponding rules in common law countries and also in major jurisdictions in western Europe, providing a wider view of the relevant law. The book illustrates the different perceptions of insurance and of insurance contract law that are to be found amongst lawyers, insurers, and policy-holders. In particular, the book argues that the perception of many people, and also not least of many judges, is that if any dispute arises with insurers, insurers have an unfair advantage under the law. Moreover, this is in fact usually the case, if insurers choose to use their advantage. Whilst presenting the rules of insurance contract law in the wider context of contract law at large, the book seeks to demystify them and to challenge the assumption that insurance law is or ought to be greatly different from other parts of the law. In particular, it argues that insurance contract law should be available and intelligible to serious enquirers, lawyers, and non-lawyers alike.
According to the common understanding, tort law is the branch of private law whose set of positive rules, institutions, and procedures aims to shift the costs of accidents from the victim to a different subject. Similar accounts of tort law are widespread and uncontested, yet they fail to do justice to the overall role tort law plays in societies. Tort law does not live in legislatures, law firms, courts, and law books only. It also lives "in the shadow" of the official system of adjudication: in the offices of insurance companies; in people's notions about injury and risk, responsibility and justice; in the languages and images associated with law in mass-generated popular culture; as well as in public debates about what values should be protected and promoted, at what costs, and at the expense of whom. On the assumption that tort law is at the same time a product and a constituent of the very cultural framework in which it is embedded, the aim of this paper is to explore its cultural dimensions in a broad comparative perspective. Combining insights from legal anthropology, socio-legal literature, legal history, and comparative law, the article tries to understand the role that, in Western and non-Western legal traditions, tort law plays in responding to, and managing social conflicts. In this perspective, the paper studies the cultural frameworks that sustain the adjudication process outside and inside the courtrooms, and analyzes how notions, practices, and remedies of tort law "in action" vary across different social and cultural settings. It then puts forward some conclusions about the extent to which tort law notions, ideas, concepts, categorizations, and perceptions influence and, reciprocally, are influenced by the cultural framework of which they are an expression.
Adapting the concept of ‘interpersonal justice’ used by Professor Robertson to provide a ‘meta-doctrinal’ defence of the law of negligence, this paper asks whether the personal injury system can be thought to have a democratic justification in common beliefs in such justice. It is widely acknowledged that the gross functional inadequacy of the personal injury system makes it implausible to claim that that system can be justified on grounds of compensation or deterrence. But that inadequacy makes it equally implausible to claim that common citizens would choose that system, which exists only because it is effectively compulsory. Constructing a market in first-person insurance would put the existence of the personal injury system to the test of actual choice.
This article deals with what as been described as the most important reform of damages for personal injury in modern times: the development of the structured settlement. To counter the criticisms of the once-and-for-all lump sum system the concept of a structured settlement was developed in the 1980's. It enabled seriously injured claimants to receive regular annuity-based payments which could be guaranteed to last for their lifetime. In addition, the payments were free of tax and could be protected against inflation in prices. Claimants receiving structured payments were relieved from the stress of having to invest and be responsible for a lump sum far greater than most people encounter in their lifetime.
This article traces the emergence of the structured settlement from its origins in the USA. It relates how the concept was transplanted via forensic accountants into the UK with the assistance of the Inland Revenue.The article provides a socio-legal analysis of the development and relies upon many unpublished sources.
How do courts determine damages for pain and suffering in cases involving personal injury? Compensation for this non-pecuniary loss was increased considerably following the key case of Heil v Rankin. This article emphasises the disproprtionate importance of this head of damages to the tort system. It is a major cause of the excessive cost, inefficiency and injustice in the tort system. Adopting a distributive justice framework, the article questions whether it is fair to increase compensation for pain and suffering when so many injury victims obtain no damages at all.
This article is concerned with insurers making agreements not to enforce their legal rights and thereby reducing in importance certain areas of the law of insurance. These agreements are of two kinds: the first is made between insurers themselves, usually with the object of avoiding the uncertainties of legal rules and the expense of obtaining court judgments; the second kind are undertakings given by insurers to government often so as to forestall official criticism and discourage legislation which might otherwise openly regulate their industry. Both types of agreement have received only very limited attention from writers on insurance law.
The article illustrates that the operation of the legal process may not be fully revealed by study only of those public and visible rules which govern the rights between insurers, government and the public. Private agreements. which may not even amount to legally enforceable contracts, are one of the less visible factors that can transform the surface appearance of the legal system
This article examines the effect upon damages for personal injury of methods used in the United States of America to calculate loss of future earnings. The work of lawyers is examined from the perspective of labour economists. The damages calculated by using these alternative methods are compared with those actually awarded in over a hundred cases determined by courts in England and Wales. This interdisciplinary and comparative study reveals that the tort system fails to satisfy one of its main objectives in that it does not provide recipients of damages with ‘full’ compensation.
During the formative period of most of the current doctrines of negligence law, liability in tort was looked on as shifting a loss that had already occurred from one individual to another--generally from the person who suffered the loss to the person who caused it. It is against the background of this way of looking at things that nearly all of our conventional reasoning about the objectives of tort law has developed and that nearly all of our conclusions have been drawn and our rules formulated. But society has no interest in the mere shifting of a loss between individuals just for the sake of shifting it. The loss, by hypothesis, has already happened. A has been killed, or his leg broken or his automobile smashed up. If the only question is whether B shall be made to pay for this loss, any good that may come to society from having compensation made to one of its members is exactly offset by the harm caused by taking that amount away from another of its members. In that view of the problem there had to be some additional reason for a defendant to compensate a plaintiff for his injury before society would compel compensation. These reasons might be (a) a feeling of what is fair or just; (b) a desire to discourage dangerous conduct, or of course a combination of both.
In 1974, Marc Galanter published an article in Law and Society Review that has become a classic in the sociology of law. Entitled "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change," it sought to empirically show how the societal haves, those "dominants" endowed with different types of capital, were treated better in America's courts than the have-nots, society's "dominated" members. This article has become an inescapable reference and the object of a robust literature. Subsequent studies have tried to comment upon, complete, and confirm its pertinence over longer or more recent durations of time and in other countries. Subject of numerous translations, Droit et Société brings the article to a Francophone audience for the first time.
An empirical study of the impact of the Woolf Reforms on pre-action behaviour with particular attention being paid to the impact of pre-action protocols on the cost, quality, speed and culture of the early stages of disputes pre- and post implementation in personal injury, mdeical negligenec and housing disrepair cases.
Some commentators have doubted whether, as is generally believed, liability insurance has had a significant expansionary effect on the law of tort. This article contends that the common assumption is, indeed, correct, and the crucial influence of insurance is clearly seen in the recent cases of Vowles v Evans and Gwilliam v West Herts NHS Trust. Once this has been acknowledged, the consequent radical incoherence in the basis of tort law needs to be confronted. The argument here is that only through faithful adherence to principles of individual responsibility and corrective justice, inherent as these are within the structure of tort law, can we hope to preserve coherence in the law of tort.