Atiyah's Accidents, Compensation and the Law

Citation

Cane, P., & Goudkamp, J. (2018). Atiyah's Accidents, Compensation and the Law (9th ed.). Cambridge University Press.

Chapter Summary

The ninth edition runs to about 530 pages and is part of the Law in Context series. Cambridge University Press describes it as an exploration of developments in personal injury law that applies social context to the relevant legal principles. It is not a restatement of tort doctrine: it asks how the law of negligence compares with other ways of compensating injured people, and what the whole system achieves. The eighteen chapters are grouped into six parts, which are described below with the chapter titles from the table of contents.

Part I, Chapter 1: Introduction: surveying the field

The single chapter of the first part, titled "The Issues in Perspective", surveys the field and sets out the questions the rest of the book pursues.

Part II, Chapters 2–7: The Tort System in Theory

The second part examines the law of tort as a system for compensating accident victims. Its chapters are "Fault as a basis of liability", "The scope of the tort of negligence", "Departures from the fault principle", "Causation and remoteness of damage", "Damages for personal injury and death" and "An appraisal of the fault principle". The part moves from the principle of fault through its limits and the rules on causation and damages to a critical assessment, which gives the book's evaluative approach its legal base.

Part III, Chapters 8–10: The Tort System in Operation

Where Part II looks at the rules, the third part looks at how claims proceed in practice. The chapters are "Claims and claimants", "Tortfeasors and insurers" and "Settlements and trials". The edition's updates, according to the publisher, include changes to the way compensation is calculated and claimed, evolving funding arrangements for personal injury litigation, and shifts in the claims management industry, which belong to this practical side of the subject.

Part IV, Chapters 11–14: Other Compensation Systems

The fourth part sets the tort system beside the alternatives. Chapter 11 is "First-party insurance", chapter 12 "Compensation for criminal injuries", chapter 13 "The social security system" and chapter 14 "Other forms of assistance". The publisher's description of the book includes social security, private insurance and criminal injuries compensation among the schemes it compares.

Part V, Chapters 15–17: The Overall Picture

Chapter 15, "A plethora of systems", brings the different schemes together. Chapter 16, "The cost of compensation and who pays it", considers the costs and funding of the systems, and chapter 17, "The functions of compensation systems", turns to what compensation is meant to achieve.

Part VI, Chapter 18: The Future

The last chapter, "Accident compensation in the twenty-first century", looks forward. The publisher says that the principles discussed remain in need of radical reform, and the final chapter looks to the future of the whole system.

Key Concepts

Part II: The tort system in theory

• Fault principle: liability based on the defendant's fault, which is examined as a basis of liability and then appraised in chapter 7.
• Negligence: its scope and the departures from the fault principle.
• Causation and remoteness: the limits on what can be recovered.
• Damages for personal injury and death: the assessment of compensation.

Part III: The tort system in operation

• Claims and claimants: who actually claims and how.
• Insurers and tortfeasors: the role of liability insurance in who pays.
• Settlements: how most claims end without trial.

Parts IV–VI: Other systems and the overall picture

• First-party insurance, criminal injuries compensation and social security: the main non-tort sources of money for the injured.
• Cost of compensation: who funds and who pays for the whole range of systems.
• Functions of compensation systems: the purposes of compensating accident victims.

Critical Analysis

Strengths

• A contextual approach to a doctrinal subject. By placing tort beside insurance, social security and criminal injuries compensation, the book answers a question that a doctrinal textbook does not: how much of the compensation actually paid is tort compensation.
• Evaluation built into the structure. The appraisal of the fault principle, the survey of the cost of compensation and the treatment of the functions of compensation systems give a basis for judging the system as a whole, in line with the publisher's remark that the book balances theory, practice and context.
• Attention to practice. A whole part on how claims, insurers and settlements work in practice goes beyond the rules.
• Fresh authorship. The ninth edition is by Peter Cane and James Goudkamp and brings the discussion up to 2018, covering new legislation, research and case law according to the publisher.

Limitations

• Date. The edition appeared in 2018, so changes in funding, claims practice and the law since then are not covered.
• Scope. The Google Books record of frequent terms points to British institutions such as the criminal injuries compensation scheme, national insurance and the Pearson Commission, so the comparisons are with the schemes of the United Kingdom.
• A reform argument. The publisher says the principles remain in need of radical reform. Readers should treat the book as an argued evaluation and compare its conclusions with other views.
• Not a doctrinal text. The book assumes the reader already knows negligence and damages, and it does not replace a tort textbook.

Where It Fits in the Course

The tort law group is made up mostly of general textbooks, such as Horsey and Rackley's Tort Law, McBride's Tort Law, Street on Torts, Winfield and Jolowicz on Tort and Markesinis and Deakin's Tort Law, which set out the rules. There are also more specialised works: Stevens's Torts and Rights is a monograph on the theory of tort as the protection of rights, and Gatley on Libel and Slander is a treatise on a single area.

Atiyah's book is the one to read for the question of what tort law does in the wider system of accident compensation. Take it after a tort course, when negligence and damages are familiar, and use it for essays on the fault principle, the reform of compensation or the interaction of tort with insurance and social security. It complements Stevens's more theoretical account, which asks what tort is, by asking what it achieves.

How to Use This Book

It is written for undergraduate and postgraduate students taking courses in tort law, according to the publisher, and presupposes a course in tort that includes negligence and damages.

A practical plan:

• Read Chapter 1 first for the questions the book asks.
• Use Part II as revision of the doctrine of fault, causation and damages, and read chapter 7, the appraisal of the fault principle, as the pivot from rules to evaluation.
• Read Parts III and IV for the comparison. These parts show what happens in practice and what the alternatives are, and they supply the material for essays on compensation systems.
• Finish with Part V and chapter 18 for the overall assessment and the argument for reform.
• Alongside the book, keep up to date with recent developments in funding and claims, since the edition dates from 2018.