Tort, insurance and ideology: further thoughts

Merkin, R. (2012) Tort, insurance and ideology: further thoughts. Modern Law Review, 75 (3). pp. 301-323. ISSN 0026-7961 doi: 10.1111/j.1468-2230.2012.00902.x

Abstract/Summary

This article explores the impact of insurance arrangements on the development of the law of obligations. It is accepted orthodoxy that the existence or otherwise of a duty of care in tort should be determined independently of the parties' underlying insurance arrangements. This article suggests that the traditional analysis is of limited value only, in that it fails to take full account of contractual arrangements which rest upon risk allocation backed by insurance; of the circumstances in which duties of care may arise; and of the relevance of insurance to the determination of the standard of care and causation principles. It is further suggested that insurance has a much greater part to play in the spreading of losses arising out of private suits than has to date been fully appreciated.