PRINCIPLE AND PRAGMATISM IN THE COMPENSATION DEBATE

Abstract

If there is a single principle explaining the relation between tort liability and other systems of compensating the injured and disabled, its content has never been clear on either side of the Atlantic. On the American side, 50 different jurisdictions and legislatures have produced 50 different bodies of law, and, at least in theory, 50 different relations. On the British side, according to Jane Stapleton's Disease and the Compensation Debate,' the absence of such legal Balkanization has not enabled the search for principle to fare very much better. Misfortune may be handled in a variety of ways: by reimbursing loss through tort or other third-party compensation schemes; through social insurance and welfare programmes; or by leaving victims to deal with misfortune themselves through the purchase of first-party insurance, reliance on familial or charitable support, adjustment to a change of fortune, or simply by suffering. In practice we use these approaches in different combinations to deal with different kinds of misfortune. Stapleton argues that the tort and social insurance systems have drawn an unprincipled distinction between injuries and disabilities, readily providing compensation for the victims of traumatic accidents but too often leaving the victims of disease to deal with that misfortune through their own devices.