A Comparative Assessment of Personal Injuries Compensation Schemes: Lessons for Tort Reform?

Margaret Devaney

Personal injuries litigation is one of the most common points of contact which the general public has with the legal system and is integral to the publicís perception of that system. Moreover, it also affects society in general in relation to issues such as the system for the organisation of labour, social security and the measures taken to prevent accidents. Thus, it can be beneficial to compare the approaches taken in different jurisdictions to attaining the common goal of restoring the victim to the position s/he would have been in had the event not occurred (restitutio in integrum).This paper carries out a comparative law assessment of several personal injuries-related issues with a view to demonstrating that none of the current approaches serve all the aims of accident compensation systems. The issues that will be considered are (a) the method of payment of damages awards (b) the calculation of future financial loss where the plaintiff is a (seriously injured) child (c) the deductibility of collateral benefits from awards of damages and (d) the impact of contributory negligence on damages awards. As well as fault-based systems, the comprehensive no-fault compensation scheme operated in New Zealand will also be discussed in relation to these issues where appropriate. After discussing these issues, some (modest) proposals will be made as to how tort reform in the personal injuries area should proceed.

Cite as: Margaret Devaney, A Comparative Assessment of Personal Injuries Compensation Schemes: Lessons for Tort Reform?, vol 13.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2009), <http://www.ejcl.org/133/art133-2.pdf>.

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