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March 22, 2010
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March 22, 2010
Abstract
The author, formerly the UK's Senior Law Lord, addresses the purposes of the law of tort through an analysis focused on the tortious liability of the police to victims of crime in respect of investigative failures. He revisits the decision of the House of Lords in Smith v Chief Constable of Sussex [2008] UKHL 50 in which a majority of the House ruled that, for reasons of public policy, the police owe no duty of care to potential victims of crime in the conduct of their investigations. Lord Bingham dissented. In this article, he subjects the policy arguments of the majority to detailed criticism, and, through a comparative analysis of similar claims in other countries, argues that English law in this area is out of step with most of the world's major jurisdictions.
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March 22, 2010
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The article proposes a concept of ‘non-contractual obligations’ as a fundamental legal category for European private law. Non-contractual obligations are an internally coherent part of the law of obligations, and they are fundamentally different from contractual obligations. Unjustified enrichment and tort law should therefore not be treated as independent or opposed types of obligations. A fundamental aspect of this conception is that ‘unjustified enrichment’ should not be misunderstood as a distinctive legal category; rather, it is a reason for liability that is functionally and structurally comparable with concepts such as fault or individual responsibility which apply throughout the legal system as a whole. To clarify the distinction between contractual and non-contractual obligations, the interplay of contractual and non-contractual rules and principles in borderline areas such as precontractual negligence is analysed.
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March 22, 2010
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Even though there is general consensus that pain and suffering damages for personal injuries should primarily be based on the severity and duration of the impairment to health, the amounts granted differ greatly between and within countries. There is no legal framework to assess the correctness of the damages because a yardstick is lacking. The authors argue that the concept of Quality Adjusted Life Years (QALYs) from the field of health economics is able to provide the required framework. The primary legal objective of damages is to restore the victim as closely as possible to the position he would have been in without the accident. Besides compensation, satisfaction and prevention are also regularly mentioned as goals of pain and suffering damages. Whatever the goal, the authors' view is that pain and suffering damages must be based on the impact of the health impairment on the victim. The concept of QALYs allows pain and suffering damages to be based on the impact of the health impairment. A QALY expresses the value of living one year in a certain health condition. The health economics literature allows an assessment of the impact of different health conditions on quality of life. By subsequently monetizing QALYs, this impact is expressed in monetary terms, which provides a systematic basis for pain and suffering damages. The authors compare pain and suffering damages in several European countries with the amounts that would result from a conservative estimate of the monetary value of a QALY for specific types of personal injuries. They show that the amounts that are currently awarded are too low when compared to this assessment of the impact of the injury on quality of life.
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March 22, 2010
Abstract
Based on data supplied by five Dutch insurers for the years 2001 – 2006, the authors analyse the development of hourly fees charged by attorneys and other legal representatives (claims agents) in personal injury cases. The analysis focuses on cases that did not go to court but where, according to Dutch law, a fee shifting rule applies: that is, the (insurer of the) losing party must pay the costs of the winner's legal assistance. One may expect that such a fee shifting rule would to some extent restrict competition in the market. The data indeed appear to suggest that in the Netherlands fees of personal injury lawyers have increased rather dramatically in recent years: more than double price and wage inflation, and much more than the fees of, for example, a trustee in bankruptcy. We offer some explanations for this based on the well-known law and economics literature. Although the fee increase we found may indeed be related to the Dutch fee shifting rule, the data we collected (which all relate to recent years) did not allow us to make a sufficiently robust connection between the two. They do, however, provide a rare and valuable insight into modern personal injuries practice in the Netherlands.
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March 22, 2010
Abstract
US tort law is an oscillating kaleidoscope of fascinating character that differs from its European counterpart(s) in many respects. This paper traces these differences. They are encountered not only on the level of substantive law but also and far more on the level of procedural law. The latter are the main factors that make the US tort litigation scene special. This paper identifies these typically ‘American’ instruments of substantive and procedural law like punitive damages, class actions, contingency fees and discovery procedures. It shows their influence on the tort litigation culture of the US and contrasts them with their possible European equivalents, which, on the whole differ significantly. The paper then specifies the reasons for these differences and draws from the comparison conclusions for the future of European tort law.
