Atiyah's accidents, compensation and the law

551 Pages·2006·2.58 MB·English

by  Peter Cane

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Atiyah’s Accidents, Compensation and the Law Seventh Edition
Since its first publication, Accidents, Compensation and the Law has been
recognised as the leading treatment ofthe law ofpersonal injuries compensation
and the social, political and economic issues surrounding it. The seventh edition
of this classic work explores recent momentous changes in personal injury law
and practice and puts them into broad perspective. Most significantly, it
examines developments affecting the financing and conduct of personal injury
claiming: the abolition oflegal aid for most personal injury claims; the increasing
use of conditional fee agreements and after-the-event insurance; the meteoric
rise and impending regulation of the claims management industry. Complaints
that Britain is a ‘compensation culture’ suffering an ‘insurance crisis’ are
investigated. New statistics on tort claims are discussed, providing fresh insights
into the evolution of the tort system which, despite recent reforms, remains
deeply flawed and ripe for radical reform.
Peter Cane has been Professor of Law in the Research School of Social
Sciences at the Australian National University since 1997. For twenty years
previously he taught law at Corpus Christi College Oxford. His main research
interests are in the law of obligations, especially tort law; public law, especially
administrative law; and legal theory. Recent publications include Responsibility
in Law and Morality (2002) and The Oxford Handbook of Legal Studies (edited
with Mark Tushnet) (2003).
Patrick Atiyahis one ofthe leading common lawyers ofhis 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; and include The Sale ofGoods (11thedition
with J N Harpers and H L McQueen, 2005), The Rise and Fall of Freedom of
Contract (1985) and The Damages Lottery(1997).
The Law in Context Series
Editors: William Twining (University College London) and
Christopher McCrudden (Lincoln College, Oxford)
Since 1970 the Law in Context series has been in the forefront ofthe movement to broaden
the study oflaw. It has been a vehicle for the publication ofinnovative 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 oflaw taught in
universities. A contextual approach involves treating legal subjects broadly, using materi-
als from other social sciences, and from any other discipline that helps to explain the oper-
ation in practice ofthe 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 ofscholarship. They are written primarily for
undergraduate and graduate students oflaw and ofother 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.
Books in the Series
Anderson, Schum & Twining: Analysis ofEvidence
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 ofInformation: The Law,the Practice and the Ideal
Cane: Atiyah’s Accidents,Compensation and the Law
Clarke & Kohler: Property Law: Commentary and Materials
Collins: The Law ofContract
Davies: Perspectives on Labour Law
Dembour: Who Believes in Human Rights?: The European Convention in Question
de Sousa Santos: Toward a New Legal Common Sense
Diduck: Law’s Families
Elworthy & Holder: Environmental Protection: Text and Materials
Fortin: Children’s Rights and the Developing Law
Glover-Thomas: Reconstructing Mental Health Law and Policy
Gobert & Punch: Rethinking Corporate Crime
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
Lacey & Wells: Reconstructing Criminal Law
Lewis: Choice and the Legal Order: Rising above Politics
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
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
Reed: Internet Law: Text and Materials
Richardson: Law,Process and Custody
Roberts & Palmer: Dispute Processes: ADR and the Primary Forms ofDecision-Making
Scott & Black: Cranston’s Consumers and the Law
Seneviratne: Ombudsmen: Public Services and Administrative Justice
Stapleton: Product Liability
Tamanaha: The Struggle for Law as a Means to an End
Turpin: British Government and the Constitution: Text,Cases and Materials
Twining: Globalisation and Legal Theory
Twining: Rethinking Evidence
Twining & Miers: How to Do Things with Rules
Ward: A Critical Introduction to European Law
Ward: Shakespeare and Legal Imagination
Zander: Cases and Materials on the English Legal System
Zander: The Law-Making Process

Atiyah’s Accidents,
Compensation and the
Law
Seventh Edition
Peter Cane
Research School of Social Sciences
Australian National University
CAMBRIDGEUNIVERSITYPRESS
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Published in the United States of America by Cambridge University Press, New York
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© Cambridge University Press 2006
This publication is in copyright. Subject to statutory exception and to the provision of
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without the written permission of Cambridge University Press.
First published in print format 2006
ISBN-13 978-0-511-34855-6 eBook (EBL)
ISBN-10 0-511-34855-X eBook (EBL)
ISBN-13 978-0-521-68931-1 paperback
ISBN-10 0-521-68931-7 paperback
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Contents
Preface xiv
List ofabbreviations xvii
List oftables xxii
Table oflegislation xxiii
Table ofcases xxviii
Part One: The Issues in Perspective
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 ofdrawing the line 10
1.3 Mixed systems in a mixed society 11
1.4 Some facts and figures 18
1.4.1 Accidents causing personal injury or death 18
1.4.2 Death and disability from other causes 20
1.4.3 The prevalence ofdisability 21
1.4.4 The effect ofdisability on income 21
1.4.5 Distribution and sources ofcompensation 22
1.4.6 The more serious and the less serious 25
Part Two: The Tort System in Theory
2 Fault as a basis of liability 33
2.1 The conceptual basis oftort law 33
2.2 Negligence as a basis ofliability 34
2.3 The fault principle 35
2.4 Negligence as fault 36
2.4.1 A question offact? 36
2.4.2 The nature ofnegligence 40
vii
viii Contents
2.4.3 Probability ofharm 42
2.4.4 Likely magnitude ofharm 43
2.4.5 The value ofthe activity and the cost ofthe
precautions needed to avoid harm 45
2.4.6 The function ofthe negligence formula 46
2.4.7 Foreseeability 47
2.4.8 The objective standard ofcare 48
2.4.9 Negligence in design and negligence in operation 50
2.5 Conduct ofthe claimant 53
2.5.1 Contributory negligence 54
2.5.2 Volenti non fit injuria 61
2.5.3 Illegality 65
3 The scope of the tort of negligence 68
3.1 The nature ofthe duty ofcare 68
3.2 Specific duty situations 70
3.2.1 Common situations in which duties ofcare
have been imposed 70
3.2.2 The distinction between acts and omissions 72
3.3 Nervous shock 84
3.4 Family claims 89
4 Departures from the fault principle 92
4.1 Fault liability and strict liability 92
4.2 ‘Procedural’devices 94
4.3 Breach ofstatutory duty 95
4.4 Contractual duties 99
4.5 Rylandsv. Fletcher, nuisance and animals 100
4.6 Joint liability 101
4.7 Vicarious liability 102
4.8 Products liability 103
4.9 Proposals to extend strict liability 105
4.9.1 Dangerous things and activities 105
4.9.2 Railway accidents 106
4.10 Ex gratia compensation schemes 107
4.10.1 Vaccine damage 107
4.10.2 HIV 108
4.10.3 Hepatits C 108
4.10.4 Variant CJD 109
5 Causation and remoteness of damage 110
5.1 Introduction 110
5.2 Factual causation 111