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Damages and Compensation Culture: Comparative Perspectives
- ISBN-10:
- 150992793X
- ISBN-13:
- 9781509927937
- Pub. Date:
- 03/21/2019
- Publisher:
- Bloomsbury Academic
- ISBN-10:
- 150992793X
- ISBN-13:
- 9781509927937
- Pub. Date:
- 03/21/2019
- Publisher:
- Bloomsbury Academic
![Damages and Compensation Culture: Comparative Perspectives](http://img.images-bn.com/static/redesign/srcs/images/grey-box.png?v11.9.4)
Damages and Compensation Culture: Comparative Perspectives
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Product Details
ISBN-13: | 9781509927937 |
---|---|
Publisher: | Bloomsbury Academic |
Publication date: | 03/21/2019 |
Edition description: | Reprint |
Pages: | 360 |
Product dimensions: | 6.69(w) x 9.61(h) x 0.74(d) |
About the Author
Eoin Quill is a Senior Lecturer in the School of Law at the University of Limerick and a fellow of the European Centre of Tort and Insurance Law (ECTIL) in Vienna.
Raymond J Friel is a Senior Lecturer and Director of the International Commercial and Economic Law Group in the School of Law at the University of Limerick.
Table of Contents
Preface v
List of Contributors xiii
Introduction Eoin Quill Raymond J Friel 1
Background 1
Compensation Culture and Tort Reform 2
A Synopsis of the Book 4
Theme 4
Part I General Features of the Relationship between Damages and Compensation Culture 4
Part II Damages Reform in Various Jurisdictions 7
Part III The Process for Delivery of Damages 9
Part IV Compensation and Personal Responsibility 11
Part I General Features of the Relationship between Damages and Compensation Culture
1 'The Whiplash Capital of the World': Genealogy of a Compensation Myth Ken Oliphant 15
Context: The Road to Whiplash Reform 15
Whiplash Becomes an Issue 15
Shaping the Political Debate 17
Proposals for Targeted Whiplash Reform 18
The Government's Programme of Whiplash Reforms 21
Additional Measures 23
The 'Whiplash Capital' Claim 25
The CEA Study 27
Selective Use of the CEA Data 29
Flaws.in the CEA Research Design and Methodology 29
The ABI's Further Research 30
The 'World Capital' Claim 32
Wider Reflections on the 'Whiplash Capital' Rhetoric 33
2 Structural Factors Affecting the Number and Cost of Personal Injury Claims in the Tort System Richard Lewis 37
Compensation Culture Disease: The Dangers of New Diagnosis 38
The Number of Claims 39
Trends in the Rate of Claiming 39
Institutional and Personal Factors Encouraging Claims 42
Liability Insurers 43
Claims Management Companies 46
Claimant Personal Injury Law Firms 47
Personal Factors Encouraging Claims 50
The Rising Cost of Claims 51
The Changing Form of Payment: Periodical Payment Orders 51
Recovery of State Benefits from Damages 53
Non-Pecuniary Loss and Increasing the Price of Pain 54
Pecuniary Loss, Discount Rates and the Real Financial World 56
Conclusion 59
3 A Reflexive Approach to Accident Law Reform Erik S Knutsen 60
Accident Law Reform Aims: Process Goals versus Justice Goals 60
Justice Goals Through a Reflexive Approach to Accident Law Reform 61
Damages Limiters 62
What is a Damages Limiter? 62
A Reflexive Account of Damages Limiters 63
Evaluating Damages Limiters 66
Public Dispute Resolution Mediaries 67
What are Public Dispute Resolution Mediaries? 67
Models of Public Dispute Resolution Mediaries 67
A Reflexive Account of Public Dispute Resolution Mediaries 69
Evaluating Public Dispute Resolution Mediaries 71
Conclusion 71
Part II Damages Reform in Various Jurisdictions
4 Reforming English Tort Law: Lessons from Australia James Goudkamp 75
Introduction 75
The Need Principle 78
Positive Changes 79
Caps 79
Thresholds and Sliding Scales 81
Exemplary and Aggravated Damages 82
Judicial Discretion and Contributory Negligence 83
Negative Changes 86
Discount Rates 86
Provisions that Restate or Appear to Restate the Common Law 88
Illegality Defences 88
Good Samaritans 90
Volunteers 91
Overlapping Schemes 91
One Hundred Per Cent Contributory Negligence 92
Conclusion 93
5 Non-Pecuniary Damages for Personal Injury: A Reflection on the Canadian Experience Jeff Berryman 95
Introduction 95
The Supreme Court Trilogy 96
Court Awarded Tort Law Personal Injuries Compensation 98
Automobile Insurance 102
Workers' Compensation Schemes 103
Court Awarded Tort Law, Beyond Personal Injuries, for Non-Pecuniary Losses 104
Commentary 106
Conclusion 112
6 Identifying and Calculating Personal Injury Damages in Ireland, Italy, France and Belgium: Recent Debates between Scholars, Judges and Practitioners Denise Amram 113
Introduction 113
Heads of Damages 114
France 114
Belgium 116
Italy 117
Damages Assessment 118
Range of Values in the Guidelines 119
Non-Pecuniary Losses Compensation Poste Par Paste and as a Unique Head of Damage 120
All Roads Lead to … Pisa?! 121
Part III The Process for Delivery of Damages
7 Deconstructing Policy on Costs and the Compensation Culture Annette Morris 125
Introduction 125
The 'Big Bang': Reform of the Personal Injury Claims Process 126
Disproportionate Costs: A Problem or a Problematisation? 132
The Problematisation of Legal Costs 134
The Power of the Insurance Lobby 135
The Senior Judiciary's Commitment to Proportionate Justice 140
Deregulation Politics 144
Conclusion 147
8 Personal Injuries Assessment Board: A Decade of Delivery? Dorothea Dowling 148
First, A Few Simple Facts 148
Some Simple Statistics 149
A Couple of Subversive Thoughts 152
The Great Match: Ireland versus England 152
What PLB Is Not 154
Transferable Lessons? 155
First Steps to Reform 158
The Objectives 160
How PIAB Works in Practice 162
How the Layers of Competing Experts have been Taken Out from the Old Process 163
A Change of Legal Culture? 164
Objections and Propaganda 165
The Question of Damages 167
Back to the PIAB Assessment Process 171
In Summation on PIAB 173
How It All Went Wrong in 2014 175
Finally, A Dip Into Doctrine 177
9 An Overview of the Role of Medical Panels in Victorian Legislation Dr Carol A Newlands 183
Introduction 183
Commencement 185
The First Decade 186
A New Century: More Changes 192
The 'Gatekeeper' 197
Workload Statistics 203
Judicial Review 204
From Here to the Future 213
Part IV Compensation and Personal Responsibility
10 Concurrent Fault at 90: A History of Ontario's Negligence Act and Canada's Uniform Contributory Fault Act John C. Kleefeld 217
The Contributory Negligence Rule: Fast Horses, Fettered Donkeys and Way Stations on the Road to Apportionment 218
Early Reform Efforts: The 1924 Ontario Act and 1924 Uniform Act 220
The No-Contribution-Among-Tortfeasors Rule: The Miller's Tale and the Stevedore's Widow's Tale 224
Reforming the Reforms: The 1930 Ontario Act and the 1935 Uniform Act 226
The Amended 1930 Ontario Act and the 1935 Uniform Act 231
The Judgment-and-Release-Bar Rules: Common Law Bars to Common Sense Outcomes 233
The 1935 Tortfeasors Act (UK) and Canadian Counterparts 236
The 1945 Contributory Negligence Act (UK) 237
Contribution After Settlement: The 1948 Amendment to the Ontario Act 238
Glanville Williams Writes an Opus 241
The 1953 Uniform Act 241
From 1975 to 1984: A Fertile Period for Reform Initiatives 243
The 1988 Ontario Law Reform Commission Report and Draft Contribution and Comparative Fault Act 256
The Revised 1990 Ontario Act 274
The Limitations Act 2002 and Repeal of the 1948 Amendment to the Ontario Act 275
A Matter of Principle(s) 281
The British Columbia Law Institute Proposal on Contribution After Settlement 284
The Manitoba Law Reform Commission Proposal for a New Act 291
Where To From Here? 299
11 Individualism and Autonomy in Occupiers' Liability and Compensation Culture Desmond Ryan 300
Introduction 300
Conceptions of Individualism and Autonomy in Tomlinson 301
Tomlinson v Congleton Borough Council: The Background 302
The Relevance of the Social Value of Activities in the Context of Autonomy Analysis 305
Free Will 306
Individualism and Autonomy in Occupiers' Liability Case Law in Ireland 310
Background to the Occupiers' Liability Act 1995 311
Weir-Rodgers: The Background 312
Judgment in the Irish Supreme Court: Strong Echoes of Tomlinson 313
The Impact of Tomlinson on Weir-Rodgers 314
The Meaning of the Value of Autonomy in this Context and its Interrelationship with Compensation Culture Concerns 316
Conclusions 318
12 Compensation Culture and Sport Tim O'Connor 320
Introduction 320
'Compensation Culture' 321
Liability for Personal Injury in Sport 321
Statutory Changes 325
Evidence of a Compensation Culture in Sport 326
Compensation Culture: Is Sport Spooked? 328
The Availability Heuristic: A Possible Mechanism? 329
Suing and the Scrum 331
Missing the Open Goal 332
Conclusion 334
Index 335