University of Southampton; Norton Rose Group. My thanks to Jenny Steele, Bob Lee, Caroline Jones and two anonymous referees for comments: errors and omissions remain my own.
Tort, Insurance and Ideology: Further Thoughts
Article first published online: 3 MAY 2012
© 2012 The Author. The Modern Law Review © 2012 The Modern Law Review Limited
The Modern Law Review
Volume 75, Issue 3, pages 301–323, May 2012
How to Cite
Merkin, R. (2012), Tort, Insurance and Ideology: Further Thoughts. The Modern Law Review, 75: 301–323. doi: 10.1111/j.1468-2230.2012.00902.x
- Issue published online: 3 MAY 2012
- Article first published online: 3 MAY 2012
- Duty of Care;
- Loss allocation;
- Risk spreading
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.