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Osgoode Hall Law Journal

Document Type

Article

Abstract

This paper reviews the existing empirical evidence on the efficacy of the tort system and alternatives to it. The evidence is evaluated against three normative goals: deterrence, corrective justice, and distributive justice. Empirical evidence relating to five major categories of accidents is reviewed: automobile accidents, medical malpractice, product related accidents, environmental injuries, and workplace injuries. In each case, the paper proceeds by reviewing empirical evidence on the deterrence and compensatory properties of the tort system, and then reviews parallel bodies of evidence on regulatory or penal alternatives and on compensatory alternatives to the tort system. The paper concludes that the deterrent properties of the tort system seem strongest with respect to auto accidents and weakest with respect to environmentally related accidents. The incentive effects of the system are mixed in the case of medical malpractice and product related accidents, making net welfare judgments problematic. In the case of workplace accidents, workers' compensation levies appear to have stronger deterrent effects than the tort system did have or might have if resurrected in this context. With respect to an expansive distributive justice perspective, the tort system appears to fail badly in all five areas, with the failure being most severe with respect to environmentally related injuries, product related injuries, and medically induced injuries. With respect to a corrective justice perspective, the tort system appears to perform reasonably well in the automobile accident context, but much less well with respect to medically induced injuries and environmentally related injuries. With respect to product related accidents, its performance is unclear. As to the alternatives to the tort system, regulatory achievements with respect to workplace safety, product related accidents, and medical malpractice appear to have been modest. In environmentally related accidents and, more qualifiedly, traffic related accidents, regulatory policies appear to have registered notable successes, although in some cases generating costs disproportionate to the benefits. As to compensatory alternatives to the tort system, these have so far played a marginal role with respect to medical, product, and environmentally related personal injuries. In the case of traffic related accidents, the empirical evidence suggests that various kinds of no-fault compensation systems can deliver compensatory benefits, at least for pecuniary losses, at lower administrative costs and with greater speed than the tort system. Even with substantial risk rating of premiums or contributions to such schemes, there is still a debate whether a significant loss in deterrence arises from curtailment or abolition of the tort system. With respect to workplace injuries or disabilities, workers' compensation schemes appear to deliver relatively complete compensation for pecuniary losses (except for long term disability) at relatively low administrative costs and more expeditiously than the tort system, as well as achieving significant safety gains. In the case of medically related injuries, experience with programmes in New Zealand and Sweden suggests that no-fault compensation systems are viable alternatives to the tort system. Although they suffer from weak internalization of accident costs to wrongdoers, these no-fault systems hold out the promise of compensating a wider range of victims more expeditiously and at lower administrative cost than the tort system. In the case of product and environmentally related injuries, no general compensatory alternatives to the tort system for personal injuries readily suggest themselves. The paper expresses doubt as to whether a general social insurance alternative to the tort system, covering both injuries and disabilities, with non-risk rated financial contributions and high levels of income coverage, is a feasible alternative to tort law for personal injuries and disabilities at large.

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