Damages and compensation culture : comparative perspectives

목차 (Table of Contents)

• 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 Poste 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 PIAB 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 = 235
• 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