Contents. Part I The issues in perspective 1. Part II The tort system in theory Introduction: surveying the field 3

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1 Table of Preface List of abbreviations List of tables Table of legislation Table of cases page xv xvii xxi xxii xxvii Part I The issues in perspective 1 1 Introduction: surveying the field Compensation for accidents Natural and human causes The issue Society s responsibility for human causes Protecting reasonable expectations Egalitarianism and the problem of drawing the line Mixed systems in a mixed society Some facts and figures Accidents causing personal injury or death Death and disability from other causes The prevalence of disability The effect of disability on income Distribution and sources of compensation The more serious and the less serious 22 Part II The tort system in theory 27 2 Fault as a basis of liability The conceptual basis of tort law Negligence as a basis of liability The fault principle 31

2 Table of viii 2.4 Negligence as fault A question of fact? The nature of negligence Probability of harm Likely magnitude of harm The value of the activity and the cost of the precautions needed to avoid harm The function of the negligence formula Foreseeability The objective standard of care Negligence in design and negligence in operation Conduct of the claimant Contributory negligence Volenti non fit injuria Illegality 62 3 The scope of the tort of negligence The nature of the duty of care Specific duty issues Common situations in which duties of care have been imposed The distinction between acts and omissions Nervous shock Family claims 88 4 Departures from the fault principle Fault liability and strict liability Procedural devices Breach of statutory duty Contractual duties Rylands v. Fletcher, nuisance and animals Joint liability Vicarious liability Products liability Proposals to extend strict liability Dangerous things and activities Railway accidents Ex gratia compensation schemes 105

3 Table of ix Vaccine damage HIV and hepatitis-c Variant CJD (Creutzfeldt-Jakob Disease) Causation and remoteness of damage Introduction Factual causation Proving causation Causing and increasing the risk of harm Omissions Multiple causal factors Limits on the liability of factual causes Legal causation Damage not within the risk Foreseeability again Conclusion Damages for personal injury and death The lump sum: predicting the future Personal injury cases Fatal cases Variation of awards after trial Suitability of lump sums Alternatives to lump sums Full compensation Interest Lost earnings and support Medical and other expenses Full compensation for lost earnings : is it justified? The earnings-related principle The 100-per-cent principle Full compensation: the commitment in practice Intangible losses Assessing intangible losses The tariff system Subjective factors Should damages be payable for intangible losses? Overall maxima Punitive damages 172

4 Table of x 7 An appraisal of the fault principle The compensation payable bears no relation to the degree of fault The compensation bears no relation to the means of the tortfeasor A harm-doer may be held legally liable without being morally culpable and vice versa Collective liability The objective definition of fault Moral culpability without legal liability The fault principle and popular morality The fault principle pays little attention to the conduct or needs of the victim Justice may require payment of compensation without fault Pragmatic objections to the fault principle The fault principle contributes to a culture of blaming and discourages people from taking responsibility for their own lives 189 Part III The tort system in operation Claims and claimants Accident victims and tort claimants Cases reaching trial and set down for trial Actions commenced Tort claims, actual and potential Why do people (not) make tort claims? Some research findings Alternative remedies Claims consciousness Particular types of claims Road accidents Industrial injuries and illnesses Public liability claims Medical injuries Group claims Tortfeasors and insurers Defendants Individuals as tort defendants Employers and corporations as tort defendants 227

5 Table of xi 9.4 Insurers The nature of liability insurance Some problems of liability insurance First-party insurance for the benefit of others The impact of liability insurance on the law Statutory provisions The impact of insurance on the common law The Motor Insurers Bureau Settlements and trials The importance of settlements Obtaining legal assistance and financing tort claims The course of negotiations Individual claims Group claims When negotiations break down The time taken to achieve a settlement The amount of compensation 282 Part IV Other compensation systems First-party insurance Types of first-party insurance Injury and illness insurance Legal expenses insurance First-party injury and illness insurance compared with tort liability Compensation for criminal injuries Tort claims Compensation orders Other sources of compensation Criminal Injuries Compensation Scheme Justifications for the CICS The scope of the CICS Comparison between the CICS and tort liability Administration Claims consciousness 324

6 Table of xii 13 The social security system Foundations of the social security system Workers compensation National insurance The Beveridge Report and the 1946 Acts Developments since Industrial injuries benefits The scope of the scheme Accidents and diseases Benefits Benefits for the disabled generally Statutory sick pay Employment and support allowance Personal independence payment Other benefits Carer s allowance Bereavement benefits Universal credit Administration The tort system and the social security system compared Overpayment, error and fraud Other forms of assistance The general legal environment The taxation system Social services Employment Mobility Housing and residential accommodation Other social services Conclusion 368 Part V The overall picture A plethora of systems The concept of over-compensation The choice of compensation system Subrogation and recoupment 374

7 Table of xiii 15.4 Tort damages and other compensation General principles Tort damages and sick pay Tort damages and personal insurance Tort damages and charitable payments Tort damages and social security benefits Criminal injuries compensation The cost of compensation and who pays it The cost of tort compensation Costs not paid through the tort system The cost of social services The cost of the social security system Other sources of compensation Costs in perspective The cost of criminal injuries compensation The functions of compensation systems Compensation Some preliminary questions The meaning of compensation Assessing compensation systems Distribution of losses What should be distributed? How should it be distributed? The allocation of risks Punishment Corrective justice Vindication Deterrence and prevention Rules and standards of behaviour Accident prevention via insurance General deterrence The basic idea Ascertaining the costs of an accident Allocation of costs to activities Responsiveness to price mechanism Applying general deterrence criteria in practice General deterrence and existing systems 445

8 Table of xiv An assessment of the value of the general deterrence approach Conclusions about general deterrence 453 Part VI The future Accident compensation in the twenty-first century Where we are now and how we got here Basic issues Strict liability or no-fault? Limited or comprehensive reform? Preferential treatment Assessment of compensation Funding Goals of the system Proposals and schemes Road accident schemes Other schemes The way ahead A social welfare solution A private insurance solution Damage to property The role of the insurance industry and the legal profession 495 Index 497