Damages and Compensation Culture: Comparative Perspectives

Description

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. Preface Table of Contents List of Contributors Introduction Background Compensation Culture and Tort Reform A Synopsis of the Book Part I: General Features of the Relationship betweenDamages and Compensation Culture 1 "The Whiplash Capital of the World": Genealogy of a Compensation Myth Context: The Road to Whiplash Reform The "Whiplash Capital" Claim Wider Reflections on the "Whiplash Capital" Rhetoric 2 Structural Factors Affecting the Number and Cost of Personal Injury Claims in the Tort System Compensation Culture Disease: The Dangers of New Diagnosis The Number of Claims The Rising Cost of Claims Conclusion 3 A Reflexive Approach to Accident Law Reform Accident Law Reform Aims: Process Goals versus Justice Goals Justice Goals Through a Reflexive Approach to Accident Law Reform Damages Limiters Public Dispute Resolution Mediaries Conclusion Part II: Damages Reform in Various Jurisdictions 4 Reforming English Tort Law: Lessons from Australia Introduction The Need Principle Positive Changes Negative Changes Conclusion 5 Non-Pecuniary Damages for Personal Injury: A Reflection on the Canadian Experience Introduction The Supreme Court Trilogy Court Awarded Tort Law Personal Injuries Compensation Automobile Insurance Workers" Compensation Schemes Court Awarded Tort Law, Beyond Personal Injuries, for Non-Pecuniary Losses Commentary Conclusion 6 Identifying and Calculating Personal Injury Damages in Ireland, Italy, France and Belgium: Recent Debates between Scholars, Judges and Practitioners Introduction Heads of Damages Damages Assessment Part III: The Process for Delivery of Damages 7 Deconstructing Policy on Costs and the Compensation Culture Introduction The "Big Bang": Reform of the Personal Injury Claims Process Disproportionate Costs: A Problem or a Problematisation? The Problematisation of Legal Costs Conclusion 8 Personal Injuries Assessment Board: A Decade of Delivery? First, A Few Simple Facts Some Simple Statistics A Couple of Subversive Thoughts The Great Match: Ireland versus England What PIAB Is Not Transferable Lessons? First Steps to Reform The Objectives How PIAB Works in Practice How the Layers of Competing Experts have been Taken Out from the Old Process A Change of Legal Culture? Objections and Propaganda The Question of Damages Back to the PIAB Assessment Process In Summation on PIAB How It All Went Wrong in 2014 Finally, A Dip Into Doctrine 9 An Overview of the Role of Medical Panels in Victorian Legislation Introduction Commencement The First Decade A New Century: More Changes The "Gatekeeper" Workload Statistics Judicial Review From Here to the Future 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 The Contributory Negligence Rule: Fast Horses, Fettered Donkeys and Way Stations on the Road to Apportionment Early Reform Efforts: The 1924 Ontario Act and 1924 Uniform Act The No-Contribution-Among-Tortfeasors Rule: The Miller"s Tale and the Stevedore"s Widow"s Tale Reforming the Reforms: The 1930 Ontario Act and the 1935 Uniform Act The Amended 1930 Ontario Act and the 1935 Uniform Act The Judgment-and-Release-Bar Rules: Common Law Bars to Common Sense Outcomes The 1935 Tortfeasors Act (UK) and Canadian Counterparts The 1945 Contributory Negligence Act (UK) Contribution After Settlement: The 1948 Amendment to the Ontario Act Glanville Williams Writes an Opus The 1953 Uniform Act From 1975 to 1984: A Fertile Period for Reform Initiatives The 1988 Ontario Law Reform Commission Report and Draft Contribution and Comparative Fault Act The Revised 1990 Ontario Act The Limitations Act 2002 and Repeal of the 1948 Amendment to the Ontario Act A Matter of Principle(s) The British Columbia Law Institute Proposal on Contribution After Settlement The Manitoba Law Reform Commission Proposal for a New Act Where To From Here? 11 Individualism and Autonomy in Occupiers" Liability and Compensation Culture Introduction Conceptions of Individualism and Autonomy in Tomlinson Individualism and Autonomy in Occupiers" Liability Case Law in Ireland The Meaning of the Value of Autonomy in this Context and its Interrelationship with Compensation Culture Concerns Conclusions 12 Compensation Culture and Sport1 Introduction "Compensation Culture" Liability for Personal Injury in Sport Statutory Changes Evidence of a Compensation Culture in Sport Compensation Culture: Is Sport Spooked? The Availability Heuristic: A Possible Mechanism? Suing and the Scrum Missing the Open Goal Conclusion Index