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When people matter: Finding humanity in tort law

Lewis, Richard 2019. When people matter: Finding humanity in tort law. Journal of Personal Injury Law (1) , pp. 10-32.

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Abstract

This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid? A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here. The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the very few cases that go to trial. In this wider context, the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.

Item Type: Article
Date Type: Publication
Status: Published
Schools: Law
Subjects: K Law > K Law (General)
Uncontrolled Keywords: Tort, compensation, personal injury, litigation, socio-legal, empirical, negotiation, bargaining, compensation culture, legal profession, liability insurance, settlement mills, accident statistics
Additional Information: This is a revised version of an article published as R. Lewis, ‘Humanity in Tort: Does Personality Affect Personal Injury Litigation?’ (2018) 71 (1) Current Legal Problems. Companion articles arising from the wider empirical research project were published as R. Lewis, ‘Strategies and Tactics in Litigating Personal Injury Claims: Tort Law in Action’ [2018] J.P.I.L. 113 and R. Lewis, ‘Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies’ (2017) 37 (1) Legal Studies 162.
ISSN: 1352-7533
Date of First Compliant Deposit: 20 February 2019
Date of Acceptance: 18 December 2018
Last Modified: 29 Jun 2019 14:37
URI: http://orca.cf.ac.uk/id/eprint/117757

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