Since publication of the seventh edition of this seminal text, personal injury law has witnessed momentous changes. A major overhaul of the social security system began in 2012 and the Equality Act 2010 significantly modifies anti-discrimination law and its impact on the disabled. But perhaps the most important legal developments have affected the financing and conduct of personal injury claiming and the operation of the claims-management industry. This new edition takes account of all this activity while setting it into a wider and longer perspective. Complaints that Britain is a ‘compensation culture’ and that the tort system is out of control are explained and assessed and options for further change are explored. Through the turmoil and controversy, the tort system remains a central feature of the legal and social landscape. The book's enduring central argument for its radical reform remains as compelling as ever.
Patrick Atiyah is one of the leading common lawyers of his generation. Until his early retirement in 1988 he was Professor of English Law at Oxford University. His published writings range widely over topics in tort law, contract law, legal history and legal theory.
Peter Cane is Distinguished Professor of Law at the Australian National University College of Law. His main research interests are in the law of obligations, especially tort law; public law, especially administrative law; and legal theory.
Since 1970 the Law in Context series has been at the forefront of the movement to broaden the study of law. It has been a vehicle for the publication of innovative scholarly books that treat law and legal phenomena critically in their social, political and economic contexts from a variety of perspectives. The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities. A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion. It is hoped that this orientation is at once more stimulating and more realistic than the bare exposition of legal rules. The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship. They are written primarily for undergraduate and graduate students of law and of other disciplines, but most also appeal to a wider readership. In the past, most books in the series have focused on English law, but recent publications include books on European law, globalisation, transnational legal processes, and comparative law.
Anderson, Schum & Twining: Analysis of Evidence
Ashworth: Sentencing and Criminal Justice
Barton & Douglas: Law and Parenthood
Beecher-Monas: Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process
Bell: French Legal Cultures
Bercusson: European Labour Law
Birkinshaw: European Public Law
Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal
Brownsword & Goodwin: Law and the Technologies of the Twenty-First Century
Cane: Atiyah's Accidents, Compensation and the Law
Clarke & Kohler: Property Law: Commentary and Materials
Collins: The Law of Contract
Cowan: Housing Law and Policy
Cranston: Legal Foundations of the Welfare State
Dauvergne: Making People Illegal: What Globalisation Means for Immigration and Law
Davies: Perspectives on Labour Law
de Sousa Santos: Toward a New Legal Common Sense
Dembour: Who Believes in Human Rights?: The European Convention in Question
Diduck: Law's Families
Fortin: Children's Rights and the Developing Law
Glover-Thomas: Reconstructing Mental Health Law and Policy
Gobert & Punch: Rethinking Corporate Crime
Goldman: Globalisation and the Western Legal Tradition: Recurring Patterns of Law and Authority
Harlow & Rawlings: Law and Administration
Harris: An Introduction to Law
Harris, Campbell & Halson: Remedies in Contract and Tort
Harvey: Seeking Asylum in the UK: Problems and Prospects
Hervey & McHale: Health Law and the European Union
Holder & Lee: Environmental Protection, Law and Policy
Jackson & Summers: The Internationalisation of Criminal Evidence
Kostakopoulou: The Future Governance of Citizenship
Lewis: Choice and the Legal Order: Rising above Politics
Likosky: Law, Infrastructure and Human Rights
Likosky: Transnational Legal Processes
Maughan & Webb: Lawyering Skills and the Legal Process
McGlynn: Families and the European Union: Law, Politics and Pluralism
Moffat: Trusts Law: Text and Materials
Monti: EC Competition Law
Morgan & Yeung: An Introduction to Law and Regulation: Text and Materials
Norrie: Crime, Reason and History
O’Dair: Legal Ethics
Oliver: Common Values and the Public–Private Divide
Oliver & Drewry: The Law and Parliament
Picciotto: International Business Taxation
Probert: The Changing Legal Regulation of Cohabitation, 1600–2010
Reed: Internet Law: Text and Materials
Richardson: Law, Process and Custody
Roberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision-Making
Rowbottom: Democracy Distorted: Wealth, Influence and Democratic Politics
Scott & Black: Cranston's Consumers and the Law
Seneviratne: Ombudsmen: Public Services and Administrative Justice
Stapleton: Product Liability
Stewart: Gender, Law and Justice in a Global Market
Tamanaha: Law as a Means to an End: Threat to the Rule of Law
Turpin & Tomkins: British Government and the Constitution: Text and Materials
Twining: General Jurisprudence: Understanding Law from a Global Perspective
Twining: Globalisation and Legal Theory
Twining: Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na'im, Yash Ghai and Upendra Baxi
Twining: Rethinking Evidence
Twining & Miers: How to Do Things with Rules
Ward: A Critical Introduction to European Law
Ward: Law, Text, Terror
Ward: Shakespeare and Legal Imagination
Wells & Quick: Lacey, Wells and Quick: Reconstructing Criminal Law
Zander: Cases and Materials on the English Legal System
Zander: The Law-Making Process
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Mexico City
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9781107636323
© Cambridge University Press 2013
This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.
First published 2013
Printed and bound in the United Kingdom by the MPG Books Group
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data
ISBN 978-1-107-63632-3 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
|
Preface
|
xv |
|
List of abbreviations
|
xvii |
|
List of tables
|
xxi |
|
Table of legislation
|
xxii |
|
Table of cases
|
xxvii |
|
Part I The issues in perspective
|
1 |
|
1 Introduction: surveying the field
|
3 |
|
1.1 Compensation for accidents
|
3 |
|
1.2 Natural and human causes
|
6 |
|
1.2.1 The issue
|
6 |
|
1.2.2 Society's ‘responsibility’ for human causes
|
8 |
|
1.2.3 Protecting reasonable expectations
|
9 |
|
1.2.4 Egalitarianism and the problem of drawing the line
|
10 |
|
1.3 Mixed systems in a mixed society
|
11 |
|
1.4 Some facts and figures
|
13 |
|
1.4.1 Accidents causing personal injury or death
|
14 |
|
1.4.2 Death and disability from other causes
|
16 |
|
1.4.3 The prevalence of disability
|
17 |
|
1.4.4 The effect of disability on income
|
18 |
|
1.4.5 Distribution and sources of compensation
|
19 |
|
1.4.6 The more serious and the less serious
|
22 |
|
Part II The tort system in theory
|
27 |
|
2 Fault as a basis of liability
|
29 |
|
2.1 The conceptual basis of tort law
|
29 |
|
2.2 Negligence as a basis of liability
|
30 |
|
2.3 The fault principle
|
31 |
|
2.4 Negligence as fault
|
32 |
|
2.4.1 A question of fact?
|
32 |
|
2.4.2 The nature of negligence
|
36 |
|
2.4.3 Probability of harm
|
39 |
|
2.4.4 Likely magnitude of harm
|
40 |
|
2.4.5 The value of the activity and the cost of the precautions needed to avoid harm
|
41 |
|
2.4.6 The function of the negligence formula
|
43 |
|
2.4.7 Foreseeability
|
44 |
|
2.4.8 The objective standard of care
|
45 |
|
2.4.9 Negligence in design and negligence in operation
|
46 |
|
2.5 Conduct of the claimant
|
50 |
|
2.5.1 Contributory negligence
|
50 |
|
2.5.2 Volenti non fit injuria
|
58 |
|
2.5.3 Illegality
|
62 |
|
3 The scope of the tort of negligence
|
66 |
|
3.1 The nature of the duty of care
|
66 |
|
3.2 Specific duty issues
|
68 |
|
3.2.1 Common situations in which duties of care have been imposed
|
68 |
|
3.2.2 The distinction between acts and omissions
|
70 |
|
3.3 Nervous shock
|
83 |
|
3.4 Family claims
|
88 |
|
4 Departures from the fault principle
|
91 |
|
4.1 Fault liability and strict liability
|
91 |
|
4.2 ‘Procedural’ devices
|
93 |
|
4.3 Breach of statutory duty
|
94 |
|
4.4 Contractual duties
|
97 |
|
4.5 Rylands v. Fletcher, nuisance and animals
|
98 |
|
4.6 Joint liability
|
99 |
|
4.7 Vicarious liability
|
101 |
|
4.8 Products liability
|
101 |
|
4.9 Proposals to extend strict liability
|
103 |
|
4.9.1 Dangerous things and activities
|
103 |
|
4.9.2 Railway accidents
|
104 |
|
4.10 Ex gratia compensation schemes
|
105 |
|
4.10.1 Vaccine damage
|
105 |
|
4.10.2 HIV and hepatitis-C
|
107 |
|
4.10.3 Variant CJD (Creutzfeldt-Jakob Disease)
|
108 |
|
5 Causation and remoteness of damage
|
109 |
|
5.1 Introduction
|
109 |
|
5.2 Factual causation
|
109 |
|
5.2.1 Proving causation
|
109 |
|
5.2.2 Causing and increasing the risk of harm
|
111 |
|
5.2.3 Omissions
|
114 |
|
5.2.4 Multiple causal factors
|
115 |
|
5.3 Limits on the liability of factual causes
|
117 |
|
5.3.1 Legal causation
|
118 |
|
5.3.2 Damage not within the risk
|
124 |
|
5.3.3 Foreseeability again
|
126 |
|
5.4 Conclusion
|
128 |
|
6 Damages for personal injury and death
|
129 |
|
6.1 The lump sum: predicting the future
|
129 |
|
6.1.1 Personal injury cases
|
129 |
|
6.1.2 Fatal cases
|
131 |
|
6.1.3 Variation of awards after trial
|
134 |
|
6.1.4 Suitability of lump sums
|
136 |
|
6.1.5 Alternatives to lump sums
|
138 |
|
6.2 Full compensation
|
142 |
|
6.2.1 Interest
|
143 |
|
6.2.2 Lost earnings and support
|
144 |
|
6.2.3 Medical and other expenses
|
148 |
|
6.3 Full compensation for lost ‘earnings’: is it justified?
|
151 |
|
6.3.1 The earnings-related principle
|
151 |
|
6.3.2 The 100-per-cent principle
|
155 |
|
6.4 Full compensation: the commitment in practice
|
156 |
|
6.5 Intangible losses
|
160 |
|
6.5.1 Assessing intangible losses
|
160 |
|
6.5.2 The tariff system
|
165 |
|
6.5.3 Subjective factors
|
169 |
|
6.5.4 Should damages be payable for intangible losses?
|
170 |
|
6.6 Overall maxima
|
171 |
|
6.7 Punitive damages
|
172 |
|
7 An appraisal of the fault principle
|
174 |
|
7.1 The compensation payable bears no relation to the degree of fault
|
174 |
|
7.2 The compensation bears no relation to the means of the tortfeasor
|
176 |
|
7.3 A harm-doer may be held legally liable without being morally culpable and vice versa
|
178 |
|
7.3.1 Collective liability
|
178 |
|
7.3.2 The objective definition of fault
|
179 |
|
7.3.3 Moral culpability without legal liability
|
182 |
|
7.3.4 The fault principle and popular morality
|
182 |
|
7.4 The fault principle pays little attention to the conduct or needs of the victim
|
183 |
|
7.5 Justice may require payment of compensation without fault
|
184 |
|
7.6 Pragmatic objections to the fault principle
|
186 |
|
7.7 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
|
199 |
|
8 Claims and claimants
|
201 |
|
8.1 Accident victims and tort claimants
|
201 |
|
8.1.1 Cases reaching trial and set down for trial
|
201 |
|
8.1.2 Actions commenced
|
203 |
|
8.1.3 Tort claims, actual and potential
|
204 |
|
8.2 Why do people (not) make tort claims?
|
207 |
|
8.2.1 Some research findings
|
207 |
|
8.2.2 Alternative remedies
|
209 |
|
8.2.3 Claims consciousness
|
210 |
|
8.3 Particular types of claims
|
215 |
|
8.3.1 Road accidents
|
215 |
|
8.3.2 Industrial injuries and illnesses
|
216 |
|
8.3.3 Public liability claims
|
218 |
|
8.3.4 Medical injuries
|
219 |
|
8.3.5 Group claims
|
221 |
|
9 Tortfeasors and insurers
|
222 |
|
9.1 Defendants
|
222 |
|
9.2 Individuals as tort defendants
|
222 |
|
9.3 Employers and corporations as tort defendants
|
227 |
|
9.4 Insurers
|
232 |
|
9.5 The nature of liability insurance
|
233 |
|
9.6 Some problems of liability insurance
|
238 |
|
9.7 First-party insurance for the benefit of others
|
244 |
|
9.8 The impact of liability insurance on the law
|
245 |
|
9.8.1 Statutory provisions
|
245 |
|
9.8.2 The impact of insurance on the common law
|
248 |
|
9.9 The Motor Insurers’ Bureau
|
254 |
|
10 Settlements and trials
|
259 |
|
10.1 The importance of settlements
|
259 |
|
10.2 Obtaining legal assistance and financing tort claims
|
260 |
|
10.3 The course of negotiations
|
266 |
|
10.3.1 Individual claims
|
267 |
|
10.3.2 Group claims
|
273 |
|
10.4 When negotiations break down
|
277 |
|
10.5 The time taken to achieve a settlement
|
279 |
|
10.6 The amount of compensation
|
282 |
|
Part IV Other compensation systems
|
287 |
|
11 First-party insurance
|
289 |
|
11.1 Types of first-party insurance
|
289 |
|
11.1.1 Injury and illness insurance
|
289 |
|
11.1.2 Legal expenses insurance
|
293 |
|
11.2 First-party injury and illness insurance compared with tort liability
|
294 |
|
12 Compensation for criminal injuries
|
299 |
|
12.1 Tort claims
|
299 |
|
12.2 Compensation orders
|
300 |
|
12.3 Other sources of compensation
|
303 |
|
12.4 Criminal Injuries Compensation Scheme
|
303 |
|
12.4.1 Justifications for the CICS
|
303 |
|
12.4.2 The scope of the CICS
|
308 |
|
12.4.3 Comparison between the CICS and tort liability
|
315 |
|
12.4.4 Administration
|
322 |
|
12.4.5 Claims consciousness
|
324 |
|
13 The social security system
|
326 |
|
13.1 Foundations of the social security system
|
326 |
|
13.1.1 Workers’ compensation
|
326 |
|
13.1.2 National insurance
|
328 |
|
13.2 The Beveridge Report and the 1946 Acts
|
329 |
|
13.3 Developments since 1946
|
332 |
|
13.4 Industrial injuries benefits
|
336 |
|
13.4.1 The scope of the scheme
|
337 |
|
13.4.2 Accidents and diseases
|
339 |
|
13.4.3 Benefits
|
342 |
|
13.5 Benefits for the disabled generally
|
345 |
|
13.5.1 Statutory sick pay
|
345 |
|
13.5.2 Employment and support allowance
|
346 |
|
13.5.3 Personal independence payment
|
347 |
|
13.6 Other benefits
|
348 |
|
13.6.1 Carer's allowance
|
348 |
|
13.6.2 Bereavement benefits
|
349 |
|
13.6.3 Universal credit
|
350 |
|
13.7 Administration
|
351 |
|
13.8 The tort system and the social security system compared
|
354 |
|
13.9 Overpayment, error and fraud
|
357 |
|
14 Other forms of assistance
|
360 |
|
14.1 The general legal environment
|
360 |
|
14.2 The taxation system
|
361 |
|
14.3 Social services
|
363 |
|
14.3.1 Employment
|
363 |
|
14.3.2 Mobility
|
365 |
|
14.3.3 Housing and residential accommodation
|
366 |
|
14.3.4 Other social services
|
367 |
|
14.4 Conclusion
|
368 |
|
Part V The overall picture
|
369 |
|
15 A plethora of systems
|
371 |
|
15.1 The concept of over-compensation
|
371 |
|
15.2 The choice of compensation system
|
372 |
|
15.3 Subrogation and recoupment
|
374 |
|
15.4 Tort damages and other compensation
|
379 |
|
15.4.1 General principles
|
379 |
|
15.4.2 Tort damages and sick pay
|
382 |
|
15.4.3 Tort damages and personal insurance
|
382 |
|
15.4.4 Tort damages and charitable payments
|
384 |
|
15.4.5 Tort damages and social security benefits
|
384 |
|
15.5 Criminal injuries compensation
|
388 |
|
16 The cost of compensation and who pays it
|
390 |
|
16.1 The cost of tort compensation
|
390 |
|
16.2 Costs not paid through the tort system
|
396 |
|
16.2.1 The cost of social services
|
396 |
|
16.2.2 The cost of the social security system
|
398 |
|
16.2.3 Other sources of compensation
|
399 |
|
16.2.4 Costs in perspective
|
400 |
|
16.3 The cost of criminal injuries compensation
|
401 |
|
17 The functions of compensation systems
|
403 |
|
17.1 Compensation
|
403 |
|
17.1.1 Some preliminary questions
|
403 |
|
17.1.2 The meaning of ‘compensation’
|
406 |
|
17.1.3 Assessing compensation systems
|
409 |
|
17.2 Distribution of losses
|
410 |
|
17.2.1 What should be distributed?
|
410 |
|
17.2.2 How should it be distributed?
|
411 |
|
17.3 The allocation of risks
|
413 |
|
17.4 Punishment
|
415 |
|
17.5 Corrective justice
|
416 |
|
17.6 Vindication
|
417 |
|
17.7 Deterrence and prevention
|
419 |
|
17.7.1 Rules and standards of behaviour
|
420 |
|
17.7.2 Accident prevention via insurance
|
429 |
|
17.8 General deterrence
|
435 |
|
17.8.1 The basic idea
|
435 |
|
17.8.2 Ascertaining the costs of an accident
|
438 |
|
17.8.3 Allocation of costs to activities
|
439 |
|
17.8.4 Responsiveness to price mechanism
|
442 |
|
17.8.5 Applying general deterrence criteria in practice
|
444 |
|
17.8.6 General deterrence and existing systems
|
445 |
|
17.8.7 An assessment of the value of the general deterrence approach
|
450 |
|
17.8.8 Conclusions about general deterrence
|
453 |
|
Part VI The future
|
457 |
|
18 Accident compensation in the twenty-first century
|
459 |
|
18.1 Where we are now and how we got here
|
459 |
|
18.2 Basic issues
|
464 |
|
18.2.1 Strict liability or no-fault?
|
464 |
|
18.2.2 Limited or comprehensive reform?
|
466 |
|
18.2.3 Preferential treatment
|
470 |
|
18.2.4 Assessment of compensation
|
472 |
|
18.2.5 Funding
|
475 |
|
18.2.6 Goals of the system
|
477 |
|
18.3 Proposals and schemes
|
482 |
|
18.3.1 Road accident schemes
|
482 |
|
18.3.2 Other schemes
|
486 |
|
18.4 The way ahead
|
487 |
|
18.4.1 A social welfare solution
|
487 |
|
18.4.2 A private insurance solution
|
491 |
|
18.5 Damage to property
|
494 |
|
18.6 The role of the insurance industry and the legal profession
|
495 |
|
Index
|
497 |