Chapter

Allocation of Risk and Tort Law

Rob Merkin and Jenny Steele

in Insurance and the Law of Obligations

Published in print August 2013 | ISBN: 9780199645749
Published online September 2013 | e-ISBN: 9780191747823 | DOI: https://dx.doi.org/10.1093/acprof:oso/9780199645749.003.0008
Allocation of Risk and Tort Law

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Turns from contract to tort, exploring the significance of insurance in determining the existence and ambit of tort duties. Explains the perceived differences between contract and tort duties and explores the significance of party risk allocation arrangements, including insurance arrangements, in relation to tort. Explains that attention to insurance arrangements is not inconsistent with the idea of ‘duty’. Explores the role of insurance arrangements in relation to tort duties in a variety of cases, beginning with ‘contractual matrix’ cases including construction cases; then turning to cases of ‘advice’ between parties and other cases beyond the contractual matrix; to public authority liability; and to employers’ duties to employees. Explains how insurance issues, and particularly risk allocation issues, have influenced the most significant developments in the law relating to negligence duties in particular.

Keywords: Tort; Duties; Contractual matrix; Risk allocation; Deterrence; Pragmatism; Formalism; Advice; Public authorities; Employers

Chapter.  29847 words. 

Subjects: Civil Law

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