1. P Cane Atiyah’ s Accidents, Cornpensation and the Law (London: Butterworths, 6th edn, 1999) p 191.

2. A recent exceptional case in which an insured motorist successfully sued a probably uninsured pedestrian is DAS International v Manley [2002] EWCA 1638.

3. Harry Street admitted that he was once a defendant in a case but only discovered that it had been determined on appeal when he read about it in a newspaper! D W Elliott and H Street Road Accidents (London: Penguin, 1968) p 209.

4. T Goriely, R Moorhead and P Abrams More Civil Justice? The Impact of the Wooy Reforms on Pre-Acrion Behaviour (London: The Law Society and the Civil Justice Council, 2002) p 90.

5. However, this very wide discretion given to insurers to conduct the litigation behind the insured's back is subject to some limit, as recognised in Groom v Crocker [1939) 1 KB 194.

6. Report of the Royal Commission on Civil Liability and Compensation for Personal lnjury Cmnd 7054 (1978) (The Pearson Commission) vol 2 para 509.

7. See H Genn Hard Bargaining (Oxford: Clarendon Press, 1987); D Harris et al Compensation for Illness and Injury (Oxford: Clarendon Press, 1984); and, in the US context, H L Ross Settled Out of court (New York: Aldine Publishing, 1980). The major findings are supported by the few, more recent, empirical studies and, in particular, by Goriely, et al, above n 4. But see the critique of Genn in Dingwall et al ‘Firm Handling: The Litigation Strategies of Defence Lawyers in Personal Injury Cases’ (2000) 20 LS 1.

8. Lord Phillips, the Master of the Rolls, has suggested that solicitors might no longer be involved with small claims where defendants are insured, and that insurers be left to administer these claims alone. ‘Insurers should run small claims’ [2004] Law Society Gazette, 29 April. Prompted by the Better Regulation Task Force Better Routes To Redress (2004) the government is investigating whether to raise the small claims limit for personal injury from £1,000 to £5,000.

9. Office of Fair Trading An Analysis of Current Problems in the UK Liability Insurance Market (London: OFT659a, 2003) para 5.6. In 2002, although there were over 350 companies authorised to transact motor insurance, only 65 companies and 11 Lloyd's syndicates actively did so. The ten largest motor insurers controlled two-thirds of the market. ABI Response to the Greenaway Review of Compulsory Motor Insurance and Uninsured Driving (London: ABI, 2004) annex B.

10. Goriely et al, above n 4 at 31 and 149.

11. Dingwall et al, above n 7.

12. Goriely et al, above n 4 at 103 found that insurers' files ‘contained remarkably little discussion of liability’, finding it initially denied in only 20% of cases.

13. Report of the Pearson Commission, above n 6, at vol 2 para 511. The relative importance to the tort system of road and industrial injuries for which insurers are most likely to be responsible has hardly changed since the Commission reported. See below n 29. For confirmation see D Marshall and A Morris ‘Resolving a Burning Fees Issue’ (2003) 26 Litigation Funding 12. However, in 150,000 cases supported by trade unions, it has been suggested that 95% are successful: Citizens Advice Bureau No Win, No Fee, No Chance (2004) para 4.31.

14. It is estimated that around 17 million motor policies and 15 million household policies offer ‘before the Event’ Legal Expenses Insurance. Such insurers already control the litigation in 80% of motor accident claims, and their market penetration is expected to continue to increase. P Smith ‘Panel Solicitors: the Legal Expense Insurer's Perspective’ (2004) 14(3) PI Focus 15.

15. P Fenn, A Gray and N Rickman The Impact of Sources of Finance on Personal Injury Litigation (2002) Lord Chancellor's Department No 7/02. P Abrams, In Safe Hands? Funding Litigcition by Legal Expenses Insurance (London: University of Westminster, 2002).

16. Blundell, H, ‘Free to Choose? Bte Legal Expenses Insurance and Freedom of Choice’ [2004] Jpil 93. It is feared that all road accident litigation will be dealt with by no more than a hundred solicitors firms nationwide. S Lawson ‘Bte Insurance - a Threat to the Profession or New Opportunities?’ (2004) 14 (3) PI Focus 17.Google Scholar

17. Abrams, above n 15, chs 8 and 9.

18. Goriely et al, above n 4 at 159 found that almost all parties agreed that, after the Woolf reforms of civil procedure, cases were now more likely to be resolved without court involvement. Major insurers estimated that, because of earlier settlement, the number of cases disposed of only after the issue of formal proceedings had declined by a third. As a result, for example, Axa insurance company announced in September 2004 that it had reduced by half the number of law firms defending its cases. Even in the past, according to the Pearson Commission, above n 6 vol 2 table 12, 86% of cases were settled without a writ being issued.

19. Before being set down for trial 98% of cases are settled, and many more are concluded before any hearing takes place. The Pearson Commission, above n 6 vol 2 table 12. Similarly, P Pleasence Personal Injury Litigation in Practice (London: Legal Aid Board Research Unit, 1998) p 12 reveals that only 5 out of the 762 ‘ordinary’ cases with costs of less than £5,000 that were studied went to trial. Earlier, Harris et al, above n 7 had suggested that the figure might be as high as 3%. However, even in cases involving very substantial awards of damages - £ 150,000 or more paid by insurers in 1987 and 1988 only 10% of payments were the result of formal court orders, and most of these related to children or patients for whom court approval of their settlements is required. P Comes Coping with Catastrophic Injury (Edinburgh: Rehabilitation Studies Unit, 1993) p 20.

20. As recognised in Davis v Johnson [1979] AC 264 at 278. But see the failed attempt to prevent the House of Lords considering important causation issues in relation to asbestos liability in Fairchild v Glenhaven Funeral Services Ltd [2002] 1 AC 32 discussed by Oliphant in H Koziol and B C Steininger (eds) European Tort Law 2002 (Vienna: Springer, 2003) p 148, and in [2002] 12(3) Association of Personal Injury Lawyers Newsletter 19.

21. Claimant lawyers are now much more likely to be specialists and work in larger and much better organised firms than in the past. Relying upon Law Society figures, Goriely et al, above n 4 at 25 note that even before April 2000 (when almost all legal aid was abolished for personal injury claims) solicitors were becoming increasingly specialised, and fewer firms were ‘dabbling’ in such work. The founding of the Association of Personal Injury Lawyers in 1990 and its subsequent activity reflects the increasing abilities and resources of claimant lawyers. M Williams ‘APIL’ (1991) 19 Civil Justice Q 103. The Association now has over 5,100 members, employs 29 people, and has a turnover of £1.73m. It is extremely well organised, and has its own Press, Parliamentary and Research officers as well as other administrators. See APIL Annual Report and Accounts 2003.

22. H L Ross, above n 7.

23. F V Harper and Fleming James The Law of Torts (Boston: Little Brown & Co, 1956) s 13.7.

24. The seminal article is Galanter, M Why the “Haves” Come out Ahead’ (1974) 9 Law and Society Rev 95. However, Dingwall et al, above n 7 emphasise that not all defendants in personal injury cases are ‘repeat players’ and they should not be treated as a homogenous group. Other limits of the article were examined in an anniversary special issue in (1999) 33 Law and Society Rev 795.CrossRefGoogle Scholar

25. According to Harris et al, above n 7, table 3.3 claimants' solicitors used to accept the first formal offer made to them in two out of three cases. More recently Goriely et al. above n 4 at 154 found more incidence of bargaining, although a third of cases still settled after only one offer, almost two thirds after two and 90% after three.

26. Ross, above n 7.

27. D Dewees, D Duff, and M Trebilcock Exploring the Domain of Accident Law: Taking the Facts Seriously (Oxford: OUP, 1996) p 19. P A Bell and J O'Connell Accidental Justice: The Dilemmas nf Torf Law (New Haven: Yale University Press, 1997) pp 63–66.

28. The other miscellaneous areas of compulsory insurance and the lack of coherent policy behind them are traced in R Lewis ‘the Duty to Insure’ (2004) 19 (2) J Ins Research & Practice 57. See also C Parsons ‘Employers Liability Insurance - How Secure is the System?’ (1999) 28 Ind LJ 109.

29. Compensation Recovery Unit figures for 2003–04, with motor comprising 48% of the total and employer liability 37%. Similarly, Datamonitor UK Personal Injury Litigation 2003 fig 5. The nature of litigation in this respect has hardly changed for the Pearson Commission total figure of 88% was only 28 more than that reported 25 years later, above n 6, vol 2 table 11. Atiyah suspected that the relative proportion of claims had not changed. P S Atiyah The Damages Lottery (Oxford: Hart Publishing, 1997) p 99.

30. Harris, above n 7, table 2.1 found that the most common accidents were those in the home, or suffered in the course of leisure activities or in playing sport, and yet very few of these resulted in any damages award. Although work and transport injuries dominate the tort system they comprise only about half of all accidents according to Pearson, above n 6, vol 2 table 57, and in Australia less than a fifth according to H Luntz and D Hambly Torts: Cases and Commentary (Sydney: Butterworths, 5th edn, 2002) p 4. Datamonitor, above n 6, 79 estimate that there were 7.8 million accidents in the home in 1999, of which only 0.5% potentially could result in a successful tort claim.

31. The Pearson Commission, above n 6, vol 1 table 5. The study reveals that only 6.5% of all accident victims incapacitated for three days of more are compensated by the tort system. However, if only serious injuries are considered tort becomes much more important. Where an accident causes incapacity for work for six months or more, almost a third of victims receive tort damages. Harris et al, above n 7 made similar findings concerning the limited importance of the tort system to accident victims in general. The significance of tort is reduced tenfold if account is taken of those suffering disablement not from accidents alone but from all causes, including congenital illness and disease. P S Atiyah The Damages Lottery (Oxford: Hart Publishing, 1997) p 100.

32. For a recent example see U Magnus (ed) The Impact of Social Securify Law on Tort Law (Vienna: Springer, 2003).

33. W A Dinsdale History of Accident Insurance in Great Britain (London: Stone and Cox, 1954) p 161. For judicial criticism of the ‘deplorable’ and ‘extremely shabby’ tactics used by insurers see Deane v H F Edwards & Co (1941) 34 BWCC 183.

34. P W J Bartrip Workmen's Compensation in Twentieth Century Britain (Aldershot: Avebury, 1987) chap 10.

35. Law Reform (Personal Injuries) Act 1948.

36. Compensation Recovery Unit figures for 2003–04. Contrast the somewhat lower proportion cited by Datamonitor UK Personal Injury Litigation 2003 fig 5.

37. Lewis, R ‘Insurers’ Agreements not to Enforce their Strict Legal Rights' (1985)48 MLR 275.CrossRefGoogle Scholar

38. First judicially recognised as long ago as Morley v Moore [1936) 2 KB 359.

39. This is the median figure in the survey of 81,000 cases receiving legal aid and closed in 1996–97 in P Pleasence Personal Injury Litigation in Practice (London: Legal Aid Board Research Unit, 1998) p 40, fig 3.17. In 70% of successful cases the damages were less than £5,000, although the overall average was £11,000. P Fenn and N Rickman ‘Costs of Low Value Liability Claims 1997–2002’ report average damages of only £3,000 for employers liability accident claims, although this study of almost 100,000 cases related only to claims for less than £15.000. See http://www.dca.gov.uk/majrep/claims/elclaims.htm. Datamonitor, above n 29 at 81 reports the average general liability personal injury claim in 2002 cost £4,407. In evidence to the Law Commission in 1993 the Trades Union Council noted that the average sum obtained in the 150,000 union-backed cases in 1991 was under £2,000. In contrast, insurers estimated for 2002 that only 1 % of cases resulted in payments of £100,000 or more, but that these were responsible for 32% of the total damages paid out. Lord Chancellor's Department Regulatory Impact Assessment on the Courts Bill (2002) table 1.

40. J G Fleming The American Tort Process (Oxford: Clarendon Press, 1988) p 21. Without insurance, the system ‘would long ago have collapsed under the weight of the demands put on it and been replaced by an alternative, and perhaps more efficient system of accident compensation.’ J G Fleming The Law of Torts (Sydney: LBC Information Services, 9th edn, 1998) p 13.

41. Extensively referenced in D Dewees, D Duff, and M Trebilcock Exploring the Domain of Accident Law: Taking the Facts Seriously (Oxford: OUP, 1996). But see M J Saks ‘Do We Really Know Anything about the Behaviour of the Tort Litigation System - and Why Not?’ (1992) 140 v Pennsylvania L R 1147.

42. The major exception being P Cane Atiyah’ s Accidents, Compensation and the Law (London: Butterworths, 6th edn, 1999) especially ch 9. There is little useful discussion in the many student and practitioner texts with the exception of M Jones Textbook on Torts (Oxford: OUP, 8th edn, 2002) s 1.3 and S Deakin, A Johnson and B Markesinis Tort Law (Oxford: OUP, 5th edn, 2003). Although J G Fleming The Law of Torts (Sydney: LBC Information Services, 9th edn, 1998) p 13 regards insurance as the cause of a vast expansion in liability and this ‘pervasive trend runs like a golden thread’ throughout the book, he gives few examples of insurance having a direct effect. There are few insurance textbooks compared to tort, but they similarly avoid specific examination of the effect of insurance on tort liability. A notable exception is the excellent section in M Clarke Policies and Perceptions of Insurance (Oxford: Clarendon Press, 1997) ch 8.

43. J Steele Risks and Legal Theory (Oxford: Hart Publishing, 2004) p 36.

44. Fleming James ‘Accident Liability Reconsidered: the Impact of Liability Insurance’ (1948) 57 Yale LJ 549 at 569.

45. Viscount Simonds in Davie v New Merton Board Mills [1959] AC 604 at 627. Similar comments were made by the same judge in Lister v Romford Ice Storage CoLtd[1957] AC 555 at 576, and by Lord Bridge in Hunt v Severs [1994] 2 AC 350 at 393. Lord Wilberforce in Morgans v Launchbury [1973] AC 127 at 137 thought it dangerous and irresponsible for judges to alter the basis of liability without knowledge about the impact upon the insurance system.

46. Nettleship v Weston [1971) 2 QB 691 at 699.

47. Morris v Ford Motor Co Ltd [1973] QB 792 at 798.

48. K Malleson The New Judiciary: The Effects of Expansion and Activism (Aldershot: Dartmouth, 1999); R Stevens The English Judges: Their Role in the Changing Constitution (Oxford: Hart, 2002); M Kirby Judicial Activism (London: Sweet and Maxwell, 2004).

49. For an Australian context see Gill, M The Expansion of Liability and the Role of Insurance - Who's the Chicken?’ [1999] International J of Insurance Law 27.Google Scholar

50. Steyn, Lord Perspectives of Corrective and Distributive Justice in Tort Law’ (2002) 23 Irish Jurist 1. Similarly, in McFarlane v Tayside Health Board [2000] 2 AC 59 at 83 he described the duty of care as ‘a mosaic in which the principles of corrective and distributive justice are interwoven’. Lord Hoffmann said that corrective justice ‘… has been abandoned in favour of a cautious pragmatism’ in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 502. For the most recent discussion of distributive justice in an insurance context, see J Steele Risks and Legal Theon, (Oxford: Hart, 2004).Google Scholar

51. J G Fleming, above n 40, p 13: ‘[W]hile in theory insurance follows liability, in experience insurance often paves the way to liability. In short it is the hidden persuader.’It plays its role ‘from a hidden position behind the scenery’ according to H Cousy ‘Tort Liability and Liability Insurance: A Difficult Relationship’ in H Koziol and B Steininger (eds) European Torr Luw 2001 (Vienna: Springer, 2002).

52. Morgan, J Tort, Insurance and Incoherence’ (2004) 67 MLR 384 at 392.CrossRefGoogle Scholar

53. M Davies ‘The End of the Affair: Duty of Care and Liability Insurance’ (1989) 9 LS 67 cf B Cardozo The Nuture of fhe Judicial Process (New Haven: Yale University Press, 1921) p 12: ‘It is often through these subconscious forces that judges are kept consistent with themselves, and inconsistent with one another.’.

54. above n 1 at 203.

55. S Deakin, A Johnson and B Markesinis Tort Law (Oxford: OUP, 5th edn, 2003) p 3.

56. James, Fleming Accident Liability Reconsidered: the Impact of Liability Insurance’(1948) 57 Yale LJ 549 at 551.CrossRefGoogle Scholar

57. W L Prosser Law of Torts (St Paul: West Publishing Co, 4th edn, 1971) p 547. In his evaluation of Prosser, White argues that, although insurance was not the primary factor, it did stimulate the growth of strict liability. G E White Tort Luw in America (Oxford: OUP, 1980) p 172.

58. M Clarke Policies and Perceptions of Insurance (Oxford: Clarendon Press, 1997) p 283.

59. Stapleton, J Tort, Insurance and Ideology’ (1995) 58 MLR 820.CrossRefGoogle Scholar

60. S Sugarman ‘Personal Injury and Social Policy - Institutional and Ideological Alternatives’ in N Mullany and A M Linden (eds) Torts Tomorrow (Sydney: LBC Information Services, 1998). One such alternative was given in S Sugarman Doing away with Personal Injury Law (New York: Quorum, 1989), and another in T Ison Compensation Systems for Injury and Disease: The Policy Choices (Toronto: Butterworths, 1994). These solutions can be contrasted with, for example, the first party insurance proposals of P S Atiyah The Damages Lottery (Oxford: Hart Publishing, 1997), and the reform suggestions noted by Dewees et al, above n 27.

61. In criticising the article, Morgan, above n 52 does not reflect upon the subtleties in Stapleton's argument contained in the previous paragraph, and rather than engaging with the detailed analysis of the case law she presents, relies upon only two recent cases to substantiate his argument that courts ‘frequently’ take insurance into account. Unfortunately, this is the very generalisation to which Stapleton objects.

62. Above n 58, p 213.

63. Sugarman, above n 60.

64. For a website debate revealing the divisions among tort scholars see the 2003 postings beginning with Harold Luntz at http://www.ucc.iellaw/odg/messages/030723b.htm.

65. http://www.dca.gov.uk/civil/procrules_fin/menus/protocol.htm.

66. These agreements were reached following mediation by the Civil Justice Council between what were described as the two sides of the personal injury litigation industry. The Civil Procedure Rules were subsequently amended to reflect the agreements.

67. It is true that there has been a proliferation of disease claims recently, numbers rising almost threefold from 73,000 in 2002 to 213,000 in 2004 according to Compensation Recovery Unit figures. However, this is the result of the special compensation rules that have devised for miners’ respiratory diseases and vibration white finger. Almost 740,000 of such claims have been registered since 1999, and are said to be’ the biggest personal injury schemes in British legal history and possibly the world’ according to http://www.dti.gov.uk/coalhealth/01.htm. However, the move to conditional fees for other disease claims has made solicitors much more reluctant to pursue them as acknowledged at recent Association of Personal Injuries Lawyers meetings. For the difficulties traditionally faced by those suffering from disease see J Stapleton Disease and the Compensation Debate (Oxford: OUP, 1986).

68. Discussed by Lord Denning in Post Office v Norwich Union Fire Insurance Soc Ltd [1967) 2 QB 363 at 375. If the rule were breached, the jury could be discharged: Askew v Grimmer (1927) 43 TLR 354.

69. Scrutton, LJ in Gowarv Hales [1928] 1 KB 191 at 197.Google Scholar

70. Lord Griffiths in Smith v Bush [1990] 1 AC 831 at 858.

71. This includes the ignorant jury who refused to find the named defendant liable because ‘you sued the wrong people. You should have sued the insurance company.’ R Eggleston Evidence, Proof and Probability (London: Weidenfeld & Nicolson, 2nd edn, 1983) p 73.

72. But see Hasson R Subrogation in Insurance Law - a Critical Evaluation’ (1985) 5 OJLS 416.

73. The position in relation to motor insurance has been improved by the European Communities (Rights Against Insurers) Regulations 2002, SI 2002/3061, made pursuant to the Fourth Motor Insurance Directive 2000/26/EC.

74. P A Cain Claims against Uninsured and Untraced Drivers (London: Sweet & Maxwell, 2003); N Jervis and J Dawson A Practical Guide to the Handing of Motor Insurers' Bureau Claims (London: Butterworths, 2002).

75. Companies Act 1989, s 141.

76. The Law Commission Third Parties - Rights against Insurers Report No 272 (2001), and Lord Chancellor's Department Consultation Paper (2002) http://www.dca.gov.uk/consult/rro/tparties.htm.

77. Davies, above n 53.

78. Murphy v Brentwood Dc [1991] 1 AC 378.

79. Clarke, above n 42 at 277 and 286.

80. Clarke, above n 42. Contrast the generally limited provision in European countries described in Van Boom et al Tort and Insurance Law: Pure Economic Loss (Vienna: Springer, 2004) esp at 200.

81. See cases cited in S Deakin et al, above n 42 at 144 et seq.

82. Hoffmann J in Morgan Crucible Co v Hill Samuel [1991] Ch 295 at 302.

83. Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] AC 211 at 241.

84. Lord Griffiths in Smith v Bush [1990] 1 AC 831 at 859.

85. Perretr v Collins [1998] 2 Lloyd's Rep 255 at 277, and the dissent of Lord Lloyd in Murc Rich & Co v Bishop Rock Marine Co Ltd [1996] AC 211.

86. Vowles v Evans [2003] 1 WLR 1607 at 1614, Van Oppen v Clerk to the Bedford Charity Trustees [1990] 1 WLR 235.

87. Watson v British Boxing Board of Control [2001] QB 1134 at 1163.

88. Kent v Grifiths [2001] QB 36.

89. Capital and Counties plc v Hampshire County Council [1997] QB 1004.

90. W V H Rogers Winfeld & Jolowicz on Tort (London: Sweet & Maxwell, 16th edn, 2002) p 143. This echoes the view of Lord Hoffmann in Stovin v Wise [1996] AC 923 at 954.

91. Russell v Smith [2003] EWHC 2060 and Eagle v Chambers [2004] RTR 9.

92. Its roots can be traced back to the early nineteenth century and marine insurance. However, the major stimulus was provided later in the century as a result of engineering risks and employers liability. C Parsons ‘from Accident to Liability - a Brief History of Liability Insurance’ (2002) 17(2) Insurance Research & Practice 23; Dinsdale, above n 33.

93. Read v Lyons & Co Ltd [1947] AC 146.

94. K M Stanton The Modern Law of Tort (London: Sweet & Maxwell, 1994) ch 17.

95. Mansfield v Wertabix [1998] 1 WLR 1263.

96. Horron v Taplin Contracfs [2003] PIQR P12.

97. Fyrche v Wincanron Logistics [2004] ICR 1582.

98. Fairchild v Glenhaven Funeral Services [2003] Ac 32. J Morgan ‘Lost Causes in the House of Lords’ (2003) 66 MLR 227 at 282 notes that the sums involved in this case were ‘staggeringly large’ and cites a press release from the construction union UCATT headlined ‘insurance companies hit for £6-£8 billion.’.

99. Cane, above n 1 at 106.

100. For example, the limited liability imposed for damage caused by fire in the USA. J G Fleming An Introduction to the Law of Torts (Oxford: Clarendon Press, 2nd edn, 1985) p 15; W L Prosser LAW of Torts (West Publishing Co: St Paul, 4th edn, 1971) p 553.

101. Trunsco v Stockport Metropolitan Council [2003] 3 WLR 1467. Similarly Lord Diplock in Phoro Producrions v Securicor Lrd [1980] AC 827 at 851; cf Lord Denning in the lower court who considered that a plaintiff s loss insurance could be cancelled out by a defendant's liability insurance [1978] 1 WLR 856 at 866.

102. Lamb v Cumden LBC [1981] QB 625.

103. R Lee and R Merkin ‘Human Action as Novus Actus Interveniens’ [1981] New LJ 965.

104. Clarke, above n 42, p 292 notes that information on insurance may be hard to obtain, and argues that the reasons for putting a ceiling on the liability of carriers, for example, do not bear close scrutiny.

105. Road Traffic Act 1988 s 149.

106. Harris et al, above n 7, p 91.

107. Sherlock v Chester Ciiy Council [2004] EWCA Civ 201.

108. Morris v Murray [1991] 2 QB 6.

109. Whire v Blackmore [1972] 2 QB 651 at 667.

110. Unfair Contract Terms Act 1977 s 11(4).

111. PS Atiyah Vicarious Liability in the Law of Torrs (London: Butterworths, 1967) p 22–28.

112. For example, liability has recently been imposed for sexual assaults carried out by a warden on boys at a boarding school in Lister v Hesley Hall [2001] 2 WLR 131 I, and for the deliberate stabbing of the claimant by a nightclub steward away from his place of employment in Matris v Pollock [2003] 1 WLR 2158. Glofcheski, ‘A Frolic in the Law of Tort: Expanding the Scope of Employers' Liability’ (2004) 12 Tort LR 18.

113. Above n 59 at 828.

114. Lister v Romford Ice Co [1957] Ac 555. G Williams ‘Vicarious Liability and the Master's Indemnity’ (1957) 20 MLR 220 and 437.

115. Gardiner (1959) MLR 652.

116. But see Lord Denning in Morris v Ford Motor Co Lrd [1973] 1 QB 792.

117. Gwilliam v West Hertfordshire NHS Trust [2003] QB 443.

118. He received support from the first instance judge in Bottomley v Todmorden Cricket Club [2004] PIQR P18. The Court of Appeal in this case did not find it necessary to determine whether an independent duty arose.

119. TNaylor v Payling [2004] EWCA 560.

120. P Cane, above n 1 at 204.

121. The system fails to achieve its high ideals and, within its own terms, often under-compensates the more seriously injured claimants. Lewis et al ‘Court Awards of Damages for Loss of Future Earnings: An Empirical Study and an Alternative Method of Calculation’ (2002) 29 J of Law & SOC 406, and ‘Loss of Earnings Following Personal Injury: Do the Courts Adequately Compensate Injured Parties?’ (2003) 113 Economic J 568.

122. Law Commission Structured Settlements and Interim and Provisional Damages (1994) Report No 224. Damages Act 1996. Wells v Wells [1999] 1 AC 345. The Lord Chancellor's reasons for changing the rate appeared on the LCD website when he considered the matter afresh in July 2001. See http://www.lcd.gov.uk/civiVdiscount.htm.

123. Law Commission Pre-Judgement Interest on Debts and Damages (2004) Report No 287.

124. R Lewis ‘Structured Settlements: An Emergent Study’ (1994) 13 Civil J Q 18; R Lewis, Structured Settlements: The Law and Practice (London: Sweet & Maxwell, 1993); and I Goldrein and M de Haas (eds) Structured Settlements: A Pructicul Guide (London: Butterworths, 2nd edn, 1997).

125. The Courts Act 2003, s 100.

126. R Lewis Deducting Benefits from Dunluges for Personal lnjuty (Oxford: OUP, 1999) para 1.14.

127. Lord Bridge in Hodgson v Trapp [1989] I AC 807.

128. Bradburn v Great Western Railway Co (1874) LR 10 Exch I. See Lewis, above n 126, ch 8.

129. Pirelli General Plc v Gacu [2004] 3 All ER 248.

130. Law Commission Personal Injury Compensation: How Much is Enough? (1994) Report No 225, para 13.8.

131. Baker, T Blood Money, New Money and the Moral Economy of Tort Law in Action’(2001) 35 Law & SOC Rev 275.CrossRefGoogle Scholar

132. As illustrated by Great North Eastern Railway v Hart [2003] EWHC 2450, a case arising from the Selby rail disaster. A negligent motorist caused a railway accident resulting in his insurer being liable to various claimants for a total of £22m.

133. Hunt v Severs [1994] 2 AC 350.

134. Law Commission Damages for Personal Injury; Medical, Nursing and other Expenses (1999) Report No 262 para 3.74. This did not prevent the Commission from recommending that the rule established by the case should be reversed.

135. Lord Lloyd in Wells v Wells [1999] 1 AC 345 at 373.

136. Lord Hutton [1999] 1 AC 345 at 405. Similarly, Lord Scarman in Lim v Camden Area Health Authority [1980] AC 174 at 187 considered the effect of higher awards on insurance premiums and the NHS matters for Parliament.

137. Heil v Rankin [2001] QB 272, criticised by R Lewis ‘Increasing the Price of Pain’(2001) 64 MLR 100.

138. Diplock LJ in Wise v Kaye [1962] l QB 638 at 669. Lord Denning feared small insurance companies could be ruined if premiums were increased and he was concerned about their wider effect upon ‘the body politic’ in Fletcher v Aurocar and Transporters Ltd [1968] 2 QB 322 at 335, but see Salmon LJ at 363.

139. Law Commission Damages for Personal Injury: Non-Pecuniary Loss (1998) Report No 257.

140. The Gleaner Co Ltd v Abrahams [2003] 3 WLR 1038 at 1053.

141. Dimond v Lovell [2000] 2 WLR 1121 at 1133.

142. Its history is traced in W L Catchpole and E Elverston BIA Fifty (Stockport: P H Press, 1967).

143. M Boleat Trade Association Strategy and Management (London: Association of British Insurers, 1997) p 21. The exception is the National Farmers' Union.

144. G Borrie The Development of Consumer Law and Policy - Bold Spirits and Timorous Souls (London: Stevens, 1984) p 110.

145. A Layard ‘Insuring Pollution in the UK’ [1996] Environmental Liability 17 at 18.

146. R V Ericson et al Insurance as Governance (Toronto: University of Toronto Press, 2003) p 151. See also R V Ericson and A Doyle Uncertain Business: Risk, Insurance and the Limits of Knowledge (Toronto, University of Toronto Press, 2004).

147. Clarke, above n 42, p 281.

148. The author's examination of the Register of Members' Interests in February 2004 revealed that only eight members of the House of Lords declared an insurance interest, one being membership of Lloyds. Only 15 Members of Parliament declared any connection with insurance companies, although a further ten recorded that they were current members of Lloyd's and nine others that they were former members.

149. C Miller Politicul Lohhying (London: Politico's, 2000) p 251. More generally see M Rush Parliament and Pressure Politics (Oxford: Clarendon Press, 1990), W Grant Pressure Groups, Politics and Democrucy in Brituin (Hemel Hempstead: Philip Allan, 1989).

150. Cabinet Office Better Policy Making: A Guide to Regulatory Impact Assessment (2003) http://www.cabinet-office.gov.uk/reguIation/scrutiny/ria-guidance.pdf.

151. See Boleat, above n 143, chs 7–8 and esp 61–64.

152. Lewis, R Lobbying and the Damages Act 1996: “Whispering in Appropriate Ears”’(1997) 60 MLR 230.CrossRefGoogle Scholar

153. C Harlow and R Rawlings Pressure through Law (London: Routledge, 1992) p 60.

154. For an excellent analysis, see W Haltom and M McCann Distorting the Law: Politics, Media and the Litigation Crisis (London: University of Chicago Press, 2004).

155. Cane ‘Liability Rules and the Cost of Professional Insurance’ (1989) 14 Geneva Papers on Risk and Insurance 347, and the Office of Fair Trading An Analysis of Current Problems in the UK Liability Insurance Market (London, 2003). For analysis of the instability of liability insurance markets see C Parsons ‘Moral Hazard in Liability Insurance’ (2003) 28(3) Geneva Papers on Risk and Insurance.

156. Contrast F Furedi Courting Mistrust: The Hidden Growth of a Culture of Litigation in Britain (London: Centre for Policy Studies, 1999) with E Lee et al Compensation Crazy: Do We Blame and Claim Too Much ? (London: Hodder & Stoughton, 2002) and the Better Regulation Task Force Better Routes to Redress (London, 2004). The latter, a government report, concludes that the compensation culture may be a myth, but the public's misperception of it results in real and costly burdens.

157. Clarke, above n 42 at 283.

158. Congenital Disabilities (Civil Liability) Act 1976.

159. Law Reform (Husband and Wife) Act 1962.

160. Law Reform (Miscellaneous Provisions) Act 1934.

161. Companies Act 1989, s 141.

162. Law Reform (Contributory Negligence) Act 1945.

163. Unfair Contract Terms Act 1977, s 11(4).