Damages and Compensation Culture: Comparative Perspectives

by Eoin Quill, Raymond J Friel

Overview

The focus of the essays in this book is on the relationship between compensation culture, social values and tort damages for personal injuries. A central concern of the public and political perception of personal injuries claims is the high cost of tort claims to society, reflected in insurance premiums, often accompanied by an assumption that tort law and practice is flawed and improperly raising such costs. The aims of this collection are to first clarify the relationship between tort damages for personal injuries and the social values that the law seeks to reflect and to balance, then to critically assess tort reforms, including both proposals for reform and actual implemented reforms, in light of how they advance or hinder those values. Reforms of substantive and procedural law in respect of personal injury damages are analysed, with perspectives from England and Wales, Canada, Australia, Ireland and continental Europe. The essays offer valuable insights to anyone interested in the reform of tort law or the tort process in respect of personal injuries.

Product Details

ISBN-13:	9781849467971
Publisher:	Bloomsbury Academic
Publication date:	11/17/2016
Pages:	360
Product dimensions:	6.69(w) x 9.61(h) x 0.81(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

Editorial Reviews

"Damages and Compensation Culture is a highly informative book, and one that tackles a topic that has so far attracted little academic attention... a valuable contribution to the ongoing public debate about compensation culture and the recoverability of damages for personal injuries." --Journal of Professional Negligence

From the Publisher