A Reflexive Approach to Accident Law Reform

Abstract

The Canadian accident law system has been a microcosm of social experiments in legal reform. The chief concerns motivating any accident law system reform efforts in Canada have been the perennial issues that prompt accident law reform in any country: litigation cost containment, insurance cost containment, processing delay, and concerns about fraud. Many Canadian initiatives to address personal injury compensation processes have mirrored the recent Irish reform approaches, and with varying successes and failures. There are two important aspects about the comparative value in examining what both countries have separately done to address the issue of compensation for personal injury. The first lies in learning how different legal cultures, different national identities, and different political and industry pressure points lead to remarkably similar institutional creations. The second lies in how each country’s failures and gains realised from these reform efforts may also track each other in parallel fashion. What does this mean?For Canada and for Ireland, it means that for realising gains in creating a fair, efficient accident law system, assessment of any reform efforts must proceed in a holistic and systemic fashion by keeping three distinct though not separate legal structures in mind: tort and liability law, insurance law and the law and behaviour surrounding civil litigation. Each of these structures must, in turn, somehow be tempered by a fourth overarching structure: justice. This chapter examines how accident law reform can most wisely proceed by adopting a reflexive approach to ensure reform accountability that considers the effects of any reform on liability law, insurance law, civil litigation, and justice concerns. It uses two common accident law reform mechanisms as examples of this approach: the damages limiter and the public dispute resolution mediary.