Should Social Insurance Pay Compensation for Pain and Suffering?

Abstract

origins in ancient Roman Law and which regulated civil liability in this field. In the process of its historical evolution, this system found concrete legislative expression in Continental Law in the French Code Civile of 1804', and later, in many laws in most States. Then, about a century ago, a second system emerged, designed, inter alia, for the same purpose. This was the system of social insurance, 2 and since that time, there are two parallel - albeit totally different - legal systems for ensuring conpensation for personal injury. The first milestone in the above-mentioned evolution was the German Workmen's Compensation Act 1884. This revolutionary Law, the passage of which constituted an event of utmost importance in the history of law, ushered in a new era in the field of compensation for personal injuries. Its importance was fourfold: first, it extricated, for the first time, a most important and defined segment of compensation (i.e. for work injuries) from the sphere of tort law, relocating it in another, totally new field. Secondly, it introduced, for the first time, liability insurance (concerning the liability of employers) of significant dimensions, in the novel form of compulsory insurance. Thirdly, it implemented, for the first time, a comprehensive system of No-Fault liability and insurance in the form of absolute liability; and fourthly, it embodied the archetype of social insurance in our time for the injured, and symbolised the birth of such insurance. In all these aspects, the said Law possesses the birthright on a world-wide level. In recent years, there has been an increasing trend for certain provisions in the field of tort law to be brought closer to the field of social insurance: consequently, it is possible to talk of the birth of a new category of legal provisions designed to compensate the victims of personal injury, represented by quasi-social provisions which have departed significantly from the classical forms of tort law.