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Employers' Liability and Workers' Compensation
Ken Oliphant, Gerhard Wagner
Verlag Walter de Gruyter GmbH & Co.KG, 2012
ISBN 9783110270211 , 660 Seiten
Format PDF, OL
Kopierschutz Wasserzeichen
Preface
5
List of Contributors
27
Introduction
29
Employers’ Liability and Workers’ Compensation: Australia
41
I. Introduction
41
A. Basic system of compensation and liability
41
B. Interaction with other institutions
43
C. Empirical evidence
44
II. Workers’ Compensation
45
A. Scope of cover
45
1. When can workers’ compensation be claimed?
47
2. Spatial and temporal dimensions of course of employment
48
B. Compensation trigger
50
C. Scope of protection
54
D. Heads and levels of benefit
55
1. Medical care
55
2. Rehabilitation assistance
56
3. Lost earnings
57
4. Non-pecuniary losses
59
5. Dependents’ benefits
60
6. Comparison with damages in tort
62
7. Lump sum or periodical payments?
63
E. Funding systems
65
1. Types of system
65
2. Contribution to the workers’ compensation fund
67
3. Incentives
67
F. Administration and adjudication of claims
68
1. Organisational framework of workers’ compensation institutions
68
2. Who decides claims for benefits
68
3. Reviews and appeals: special tribunals or general civil justice system?
69
4. Speed of claims’ resolution and administrative costs
70
G. Rights of recourse of workers’ compensation institutions
72
1. Recourse against employer
72
2. Recourse against a co-worker
72
3. Recourse against third parties
73
H. Interaction with general social welfare provision and private insurance
74
1. Fund of first resort?
74
2. Deductibility of benefits
74
3. Recourse of social welfare agencies, social health insurance, private health insurers against workers’ compensation institutions
75
I. Interaction with employers' liability
76
1. Availability of damages in addition to workers’ compensation benefits
76
2. Deductibility of benefits provided by workers’ compensation in action against employer
77
3. Subrogation of workers’ compensation into the claim of worker against employer
78
III. Employers’ Liability
78
A. Classification
78
1. Contract or tort?
78
2. General law or a special category
79
B. Elements of liability
79
1. Liability of employers for their own acts or omissions
79
2. Liability of employers for the acts or omissions of their employees and others
79
3. Relevance of health and safety legislation in establishing liability
80
4. Overall a fault-based or strict liability system
81
5. Causation
81
6. Effect of victim’s contributory conduct
81
C. Scope of protection
82
D. Heads and levels of damages
83
1. Same level as in other cases of personal injury
83
2. Heads of recoverable damage
84
3. Costs of medical care
84
4. Costs of rehabilitation assistance
84
5. Lost earnings, loss of earning capacity, and loss of pension entitlements
85
6. Non-pecuniary loss
85
7. Dependents
86
8. Form of payment
86
E. Administration of claims
87
1. Courts or specialised tribunals
87
2. General civil procedure or special procedures?
87
3. Reviews and appeals
88
4. Speed of claims’ resolution and administrative costs
88
F. Rights of recourse
89
1. Against other employees or their liability insurer?
89
2. Against third parties
89
G. Interaction with social welfare systems and private insurance
90
1. Deductibility of benefits received from social welfare agencies
90
2. Recourse of social welfare agencies and private insurers against the employer
90
H. Insurance
91
1. Voluntary or mandatory?
91
2. General liability insurance or special policy
91
3. Basic principles of employers’ liability insurance
92
IV. Evaluation and Conclusions
93
A. Compensation
93
B. Prevention
94
C. Overall costs
95
D. Interaction between workers’ compensation and private law
95
E. Plans for reform
96
F. Overall quality of each system independently and in combination
98
Employers’ Liability and Workers’ Compensation: Austria
103
I. Introduction
103
A. Basic system of compensation and liability
103
1. Historical development
103
2. Basic system
105
3. Relation to private law remedies
106
B. Interaction with other institutions
107
C. Empirical evidence
108
II. Workers’ Compensation
108
A. Scope of cover
108
1. Protected sphere of life
109
2. Attribution
110
B. Compensation trigger
112
C. Scope of protection
113
1. Personal injury
113
2. Sexual harassment
113
3. Dignitary injuries
114
4. Property damage and pure economic loss
114
D. Heads and levels of benefit
115
1. Benefits in kind
115
2. Cash benefits
116
E. Funding systems
121
1. Funding through contributions
121
2. Financial equalisation (Finanzausgleich)
123
F. Administration and adjudication of claims
123
G. Rights of recourse of workers' compensation institutions
127
1. General
127
2. Recourse against the employer
129
3. Recourse against a colleague?
130
4. Recourse against third parties
131
H. Interaction with general social welfare provision and private insurance
131
1. Relationship between health and accident insurance
131
2. Relationship between Social Insurance and Minimum Insurance
133
I. Interaction with employers’ liability
133
III. Employers’ Liability
134
A. Classification
134
1. General tortious fault-based and the employer’s liability privilege
134
2. Work accidents caused by vehicles for which there is enhanced liability
138
B. Elements of liability
138
1. Fault-based liability
138
2. Strict liability
140
3. Liability for risks without fault
141
C. Scope of protection
143
D. Heads and levels of damages
143
1. Personal injuries
143
2. Material damages
144
E. Administration of claims
144
F. Rights of recourse
145
G. Interaction with social welfare systems and private insurance
145
H. Insurance
145
IV. Evaluation and Conclusions
146
A. Compensation
146
B. Prevention
146
C. Overall costs
147
D. Interaction between workers’ compensation and private law
147
E. Plans for reform
149
F. Overall quality of each system independently and in combination
150
Employers’ Liability and Workers’ Compensation: Denmark
151
I. Introduction
151
A. Basic system of compensation and liability
151
B. Interaction with other institutions
152
C. Empirical evidence
152
II. Workers’ Compensation
152
A. Scope of cover
152
B. Compensation trigger
155
C. Scope of protection
157
D. Heads and levels of benefit
158
E. Funding systems
160
F. Administration and adjudication of claims
160
G. Rights of recourse of workers’ compensation institutions
161
H. Interaction with general social welfare provision and private insurance
162
I. Interaction with employers’ liability
163
III. Employers’ Liability
164
A. Classification
164
B. Elements of liability
165
C. Scope of protection
167
D. Heads and levels of damages
168
E. Administration of claims
170
F. Rights of recourse
171
G. Interaction with social welfare systems and private insurance
172
H. Insurance
173
IV. Evaluation and Conclusions
174
A. Compensation
174
B. Prevention
174
C. Overall costs
175
D. Interaction between workers’ compensation and private law
175
E. Plans for reform
175
F. Overall quality of each system independently and in combination
175
Employers’ Liability and Workers’ Compensation: England and Wales
177
I. Introduction
177
A. The basic system of compensation and liability
177
1. Tort
178
2. Workers’ compensation
180
3. Why preferential compensation for workers?
181
B. Interaction with other institutions
183
C. Empirical evidence
183
II. Workers’ Compensation
184
A. Scope of cover
184
1. Workers covered
184
2. Spatial, temporal and other limitations
185
3. Effect of the victim’s contributory negligence
192
B. Compensation trigger
193
1. Accidents
194
2. Disease
196
C. Scope of protection
199
1. Personal injury
199
2. Other than personal injury
201
D. Heads and levels of benefit
201
1. Assessment
203
2. Rate of payment
205
3. Comparison of the industrial injuries pension with damages in tort
206
E. Funding systems
207
F. Administration and adjudication of claims
208
1. Claims and appeals
208
2. Tribunals not courts
209
3. Administrative cost
209
G. Right of recourse of workers’ compensation institutions
210
1. Rights of recourse against the employer
210
2. Rights of recourse against a co-worker or third party
211
H. Interaction with general social welfare provision and private insurance
211
1. The sources of funding
211
2. Deductibility of benefits
212
I. Interaction with employers’ liability
213
III. Employers’ Liability
214
A. Classification
214
B. Elements of liability
214
1. Vicarious liability
215
2. Breach of common law duty
217
3. Breach of statutory duty
218
4. Effect of the victim’s contributory conduct
219
C. Scope of protection
220
1. Accidents and disease
220
2. Personal injury
221
3. Other than personal injury
222
D. Heads and levels of damages
224
E. Administration of claims
225
1. Number and cost of claims
226
2. Insurers and the administration of the tort system
227
3. The speed of settlement
229
4. The administrative cost of tort
229
F. Rights of recourse
230
1. Rights of recourse against other employees
230
2. Rights of recourse against third parties
231
G. Interaction with social welfare systems and private insurance
231
1. Recourse of social security agency against the employer
231
2. Reducing damages to take account of the benefits paid
233
3. Recovering the cost of National Health Service treatment
233
H. Insurance
234
1. The scope of compulsory insurance
234
2. Policy limits and insurance triggers
235
3. Apportionment
236
IV. Evaluation and Conclusions
237
A. Compensation
237
1. Scope of each scheme
237
2. Amount and purpose of compensation
237
3. Fault and no-fault
239
B. Prevention
239
C. Overall costs
240
D. Interaction between workers'compensation and private law
241
E. Plans for reform
241
F. Overall quality of each system independently and in combination
242
Employers’ Liability and Workers’ Compensation: France
243
I. Introduction
243
A. Basic system of compensation and liability
243
B. Interaction with other institutions
244
C. Empirical evidence
244
II. Workers’ Compensation
246
A. Scope of cover
246
1. Workers covered
246
2. Spatial, temporal and other limitations
247
3. Effects of the victim’s contributory conduct
252
B. Compensation trigger
253
1. Accidents
253
2. Diseases
254
C. Scope of protection
257
1. Personal injury
257
2. Pure economic loss
258
3. Property damage
260
4. Sexual harassment - dignitary injuries
260
D. Heads and levels of benefit
261
1. Medical care and rehabilitation assistance
261
2. Lost earnings
263
3. Dependents’ benefits
263
4. Comparison with damages in tort
263
5. Lump sum or periodical payments?
264
E. Funding systems
264
F. Administration and adjudication of claims
266
1. Accident
266
2. Disease
267
3. Litigation
267
4. Speed of claims’ resolution and administrative costs
268
G. Rights of recourse of workers’ compensation institutions
268
1. Recourse of workers’ compensation institutions against employers
269
2. Recourse of workers’ compensation institutions against co-employees
270
3. Recourse of workers’ compensation institutions against third parties
270
H. Interaction with general social welfare provision and private insurance
270
1. Fund of first resort
270
2. Deductibility of benefits
271
3. Recourse of social welfare agencies, social health insurance, private health insurers, etc, against workers’ compensation institutions?
272
I. Interaction with employers’ liability
272
1. Availability of damages in addition to workers’ compensation benefits?
272
2. Deductibility of benefits provided by workers’ compensation institutions from claim against employer (collateral source rule)
273
3. Subrogation of workers’ compensation institutions into the claim of workers against employer
274
III. Employers’ Liability
274
A. Classification
274
1. Inexcusable negligence (art L 452-1 Social Security Code, CSS)
275
2. Wilful misconduct (art L 452-5 CSS)
276
3. Liability of a third party (art L 454-1 CSS)
277
4. Traffic accident
278
5. Criminal offence
278
B. Elements of liability
281
1. Liability of employers for their own acts or omissions
281
2. Liability of employers for the acts or omissions of their employees and others (the scope of vicarious liability; the effect of any ‘common employment’ exclusionary rule)
284
3. Relevance of health and safety legislation in establishing liability
285
4. Overall a fault-based or strict liability?
286
5. Causation
286
6. Effect of the victim’s contributory conduct
287
C. Scope of protection
288
1. Inexcusable negligence on the part of the employer
288
2. General civil liability
289
D. Heads and levels of damages
291
1. Inexcusable negligence of the employer
291
2. General civil liability
291
E. Administration of claims
294
1. Inexcusable negligence
294
2. Civil liability
295
F. Rights of recourse
295
1. In case of employers’ liability
295
2. In case of a third party’s liability
297
G. Interaction with social welfare systems and private insurance
297
H. Insurance
299
IV. Evaluation and Conclusions
299
A. Compensation
299
B. Prevention
300
C. Overall costs
301
D. Interaction between workers’ compensation and private law
302
E. Plans for reform
303
F. Overall quality of each system independently and in combination
304
Employers’ Liability and Workers’ Compensation: Germany
305
I. Introduction
305
A. Basic system of compensation and liability
305
1. History and expansions
305
2. Insurance and liability
306
B. Interaction with other institutions
306
C. Empirical evidence
306
II. Workers’ Compensation
307
A. Scope of cover
307
B. Compensation trigger
308
1. Accidents
308
2. Diseases
308
C. Scope of protection
309
1. Occupational accident
309
2. Occupational disease
310
3. Insured ‘categories of damage’
310
D. Heads and levels of benefit
310
E. Funding systems
314
F. Administration and adjudication of claims
315
G. Rights of recourse of workers’ compensation institutions
316
H. Interaction with general social welfare provision and private insurance
317
I. Interaction with employers’ liability
317
III. Employers’ Liability
320
A. Classification
321
B. Elements of liability
321
C. Scope of protection
323
D. Heads and levels of damages
325
1. Personal injuries
325
2. Material damages
327
3. Liability agreements
327
E. Administration of claims
327
F. Rights of recourse
328
1. Against other employees who caused the harm
328
2. Against third parties (eg equipment/component manufacturers, suppliers of raw materials, etc)
328
G. Interaction with social welfare systems and private insurance
329
1. Problems concerning the extended exemption from liability
329
2. Are benefits received from social welfare agencies deducted from claims against the employer?
329
3. Recourse of social welfare agencies and private insurers against the employer
330
H. Insurance
330
IV. Evaluation and Conclusions
331
A. Compensation
331
B. Prevention
332
C. Overall costs
333
D. Interaction between workers’ compensation and private law
333
E. Plans for reform
334
F. Overall quality of each system independently and in combination
334
1. Statutory accident insurance
334
2. Employers’ liability
336
Employers’ Liability and Workers’ Compensation: Italy
337
I. Introduction
337
A. Basic system of compensation and liability
337
B. Interaction with other institutions
339
C. Empirical evidence
339
II. Workers’ Compensation
341
A. Scope of cover
341
B. Compensation trigger
344
C. Scope of protection
345
D. Heads and levels of benefit
346
1. Medical care and rehabilitation assistance
346
2. Non-pecuniary losses
347
3. Dependent’s benefits and benefits to their relatives
350
4. Comparison with damages in tort
350
5. Lump sums or periodical payments?
351
E. Funding systems
352
F. Administration and adjudication of claims
353
G. Rights of recourse of workers’ compensation institutions
355
H. Interaction with general social welfare provision and private insurance
356
I. Interaction with employers’ liability
356
III. Employers’ Liability
357
A. Classification
357
B. Elements of liability
358
C. Scope of protection
362
D. Heads and levels of damages
363
E. Administration of claims
366
F. Rights of recourse
366
G. Interaction with social welfare systems and private insurance
367
H. Insurance
368
IV. Evaluation and Conclusions
368
A. Compensation
368
B. Prevention
368
C. Overall costs
369
D. Interaction between workers’ compensation and private law
370
E. Plans for reform
370
F. Overall quality of each system independently and in combination
371
Employers’ Liability and Workers’ Compensation: Japan
373
I. Introduction
373
A. Basic system of compensation and liability
373
B. Interaction with other institutions
374
C. Empirical evidence
374
II. Workers’ Compensation
375
A. Scope of cover
375
B. Compensation trigger
375
C. Scope of protection
376
D. Heads and levels of benefit
376
1. Medical compensation
376
2. Compensation for absence from work
377
3. Compensation for disabilities
377
4. Compensation for bereaved family
378
5. Non-pecuniary losses
378
6. Medical examination benefits
378
E. Funding systems
379
F. Administration and adjudication of claims
379
G. Right of recourse of workers’ compensation institutions
380
H. Interaction with general social welfare provision and private insurance
380
1. Interaction with general social welfare provision
380
2. Interaction with private insurance
382
I. Interaction with employers’ liability
382
III. Employers’ Liability
383
A. Classification
383
B. Elements of liability
384
C. Scope of protection
385
D. Heads and levels of damages
385
E. Administration of claims
386
F. Rights of recourse
386
1. Against another employee
386
2. Against third parties
387
G. Interaction with social welfare systems and private insurance
387
H. Insurance
388
IV. Evaluation and Conclusions
388
A. Compensation
388
B. Prevention
389
C. Overall costs
389
D. Interaction between workers’ compensation and private law
390
E. Plans for reform
390
F. Overall quality of each system independently and in combination
390
Employers’ Liability and Workers’ Compensation: The Netherlands
391
I. Introduction
391
A. Basic system of compensation and liability
391
B. Interaction with other institutions
391
C. Empirical evidence
393
II. Workers’ Compensation
393
III. Employers’ Liability
395
A. Classification
395
B. Elements of liability
397
C. Scope of protection
401
D. Heads and levels of damages
402
E. Administration of claims
403
F. Rights of recourse
403
G. Interaction with social welfare systems and private insurance
404
H. Insurance
404
IV. Evaluation and Conclusions
405
A. Compensation
405
B. Prevention
406
C. Overall costs
406
D. Interaction between workers’ compensation and private law
407
E. Plans for reform
407
F. Overall quality of each system independently and in combination
408
Employers’ Liability and Workers’ Compensation: Poland
409
I. Introduction
409
A. Basic system of compensation and liability
409
B. Interaction with other institutions
410
C. Empirical evidence
410
II. Workers’ Compensation
410
A. Scope of cover
410
1. Workers covered
410
2. Spatial, temporal and other limitations
411
3. Effect of the victim’s contributory conduct
411
B. Compensation trigger
413
1. Accidents
413
2. Disease (occupational diseases)
419
C. Scope of protection
421
1. Personal injury
421
2. Sexual harassment
421
3. Property damage
421
4. Pure economic loss
421
D. Heads and levels of benefit
421
1. Medical care
421
2. Rehabilitation assistance
423
3. Lost earnings, loss of earning capacity and loss of pension entitlements
423
4. Non-pecuniary losses
423
5. Dependant’s benefits
423
6. Comparison with damages in tort
424
7. Lump sum or periodical payments
424
E. Funding systems
424
1. Type of system
424
2. Incentives
426
F. Administration and adjudication of claims
426
1. Organisational framework of workers’ compensation institutions
426
2. Reviews and appeals: Special tribunals or general civil justice system?
426
3. Speed of claims’ resolution and administrative costs
427
G. Rights of recourse of workers’ compensation institutions
427
H. Interaction with general social welfare provision and private insurance
427
I. Interaction with employers’ liability
427
III. Employers’ Liability
428
A. Classification
428
1. Contract or tort?
428
2. General law or special category?
428
B. Elements of liability
428
1. Liability of employers for their own acts and omissions
428
2. Liability of employers for the acts or omissions of their employees and others
429
3. Overall a fault-based or strict liability?
429
4. Causation
429
5. Effect of the victim’s contributory conduct
429
C. Scope of protection
429
1. Personal injury
429
2. Sexual harassment
430
3. Dignitary injuries
431
4. Property damage
431
5. Pure economic loss
432
D. Heads and levels of damages
432
1. Main heads of recoverable damages
432
2. Costs of medical care
432
3. Costs of rehabilitation assistance
433
4. Lost earnings, loss of earning capacity and loss of pension entitlements
433
5. Dependents’ benefits
433
6. Non-pecuniary losses
433
7. Form of payment
433
E. Administration of claims
434
1. Courts or specialised tribunals?
434
2. General civil procedure or special procedures
434
3. Reviews and appeals
434
4. Speed of claims’ resolution and administrative cost
434
F. Rights of recourse
435
1. Against employees
435
2. Against third parties
435
G. Interaction with social welfare systems and private insurance
435
H. Insurance
435
1. Voluntary or mandatory?
435
2. General liability insurance or special policy?
435
3. Basic principles of employers’ liability insurance
436
IV. Evaluation and Conclusions
436
A. Compensation
436
B. Prevention
436
C. Overall costs
437
D. Interaction between workers’ compensation and private law
437
E. Plans for reform
437
F. Overall quality of each system independently and in combination
437
Employers’ Liability and Workers’ Compensation: Romania
439
I. Introduction
439
A. Basic system of compensation and liability
439
B. Interaction with other institutions
440
C. Empirical evidence
441
II. Workers’ Compensation
442
A. Scope of cover
442
1. Spatial limits
443
2. Temporal limitations
444
B. Compensation trigger
444
C. Scope of protection
446
1. Personal injury
446
2. Sexual harassment and injury to one’s dignity
447
3. Property damage and pure economic loss
448
D. Heads and levels of benefit
449
1. Medical care
449
2. Rehabilitation assistance
450
3. Lost earnings, loss of earning capacity and loss of pension entitlements
451
4. Expenses refund
452
5. Non-pecuniary losses
453
6. Dependants’ benefit
453
7. Comparison with damages in tort
454
8. Form of payment
454
E. Funding systems
454
1. Type of system
454
2. Contributions to the workers’ compensation fund
455
3. Risk-rating of contribution
455
F. Administration and adjudication of claims
456
1. Organisational framework of workers compensation institutions
456
2. Who decides over claims for benefits?
457
3. Reviews and appeals: special tribunals or general civil justice system?
458
4. Speed of claims resolution and administrative costs
459
G. Rights of recourse of workers’ compensation institutions
459
1. Recourse against the employer
459
2. Recourse against a co-worker or against third parties
460
H. Interaction with general social welfare provisions and private insurance
460
I. Interaction with employers’ liability
461
III. Employers’ Liability
461
A. Classification
461
B. Elements of liability
462
1. Liability of employers for their own acts or omissions
462
2. Liability of employers for the acts or omissions of their employees and others
463
3. Relevance of health and safety legislation in establishing liability
464
4. Overall a fault-based or strict liability system?
464
5. Causation
465
6. Effect of the victim’s contributory conduct
466
C. Scope of protection
466
1. Personal injury
467
2. Sexual harassment and injuries to dignity
467
3. Property damage and pure economic loss
468
D. Heads and levels of damages
468
E. Administration of claims
470
F. Rights of recourse
470
G. Interaction with the social welfare system and private insurance
471
H. Insurance
471
IV. Evaluation and Conclusions
472
A. Compensation
472
B. Prevention
473
C. Overall costs
474
D. Interaction between workers’ compensation and private law
474
E. Plans for reform
474
F. Overall quality of each system independently and in combination
475
Employers’ Liability and Workers’ Compensation: United States.
477
I. Introduction
477
A. Basic system of compensation and liability
477
B. Interaction with other institutions
478
C. Empirical evidence
478
II. Worker’s Compensation
479
A. Scope of cover
479
B. Compensation trigger
481
1. The ‘accident’ requirement
481
2. Arising out of and in the course of employment
482
3. Occupational Disease
484
C. Scope of protection
486
1. Sexual Harassment
487
2. Dignitary Injuries
489
3. Property Damage
489
4. Pure Economic Loss
490
D. Heads and levels of benefit
490
1. Medical Care
490
2. Rehabilitation
493
3. Lost Earnings
495
4. Non-Pecuniary Losses
499
5. Dependents’ Benefits
499
6. Comparison with Tort
501
7. Lump Sum Payments
502
E. Funding systems
503
F. Administration and adjudication of claims
505
G. Rights of recourse of workers’ compensation institutions
507
H. Interaction with general social welfare provision and private insurance
508
I. Interaction with employers’ liability
510
III. Employers’ Liability
510
A. Classification
510
B. Elements of liability
511
C. Scope of protection
513
D. Heads and levels of damages
514
E. Administration of claims
514
F. Rights of recourse
515
G. Interaction with social welfare systems and private insurance
515
H. Insurance
516
IV. Evaluation and Conclusions
516
A. Compensation
517
B. Prevention
518
C. Overall costs
519
D. Interaction between workers’ compensation and private law
520
E. Plans for reform
521
F. Overall quality of each system independently and in combination
521
The European Coordination of Employers’ Liability and Workers’ Compensation
525
I. Introduction
525
II. Empirical Evidence
526
III. Workers’ Compensation
527
A. Limitation to national territory
527
B. European coordination of social security systems
528
C. Sources of law
529
D. Scope of cover
531
E. General rules for determining the legislation applicable
532
1. General application of the law of the country of employment
532
2. Special provisions for determining the legislation applicable
533
3. Pursuit of activities in two or more Member States
534
4. Freedom of choice
535
F. Special provisions for determining the legislation applicable in cases of accidents at work and occupational diseases
536
G. Administration and adjudication of claims
537
H. Rights of recourse of workers’ compensation institutions and interaction with employers’ liability
538
IV. Employers’ Liability
541
A. Classification
541
B. The Law applicable to contractual duties
545
1. Source of law
545
2. Scope of protection
545
3. General rules for determining the legislation applicable
546
4. Special provisions for individual employment contracts
548
C. The Law applicable to extra-contractual duties
550
1. Source of law
550
2. Scope of protection
550
3. General rule
550
4. Escape clause
551
D. Adjudication of claims
552
1. Source of law
552
2. Scope
552
3. Rules for international jurisdiction in relation to contracts of employment
553
E. Rights of recourse and interaction between employers’ liability and workers’ compensation
555
V. Alternatives, Evaluation and Conclusions
555
The Changing Landscape of Work Injury Claims: Challenges for Employers’ Liability and Workers’ Compensation
559
I. Introduction
559
A. The Changing Landscape of Work Injury Claims
559
B. The social construction of injury claims
561
C. The compensation and liability framework
563
1. Workers’ compensation
563
2. Employers’liability
564
D. Plan
566
II. Recognition issues (‘naming problems’)
566
A. Issues for Workers’ Compensation
566
1. An accident preference
566
2. Disease
569
3. Mental illness
573
4. Harassment and discrimination
576
B. Issues for employers’ liability
577
1. An accident preference
577
2. Disease
579
3. Mental illness
579
4. Harassment and discrimination
580
III. Attribution issues (‘blaming problems’)
582
A. Issues for employers’ liability
582
1. A violation of the required standard of care
583
2. Causation
585
3. Time limits (prescription)
586
4. Insurance
588
5. The risk of insolvency
589
B. Issues for workers’ compensation
590
IV. Challenges for Employers’ Liability and Workers’ Compensation
592
A. Introduction
592
B. Challenges for Workers’ Compensation
593
C. Challenges for Employers’ Liability
593
D. Coordination of the two systems
596
V. Conclusion
598
New Perspectives on Employers’Liability - Basic Policy Issues
601
I. Introduction
601
II. Systems of Workers’ Compensation: Basic Features
603
A. Compensation regardless of fault of employer and contributory fault of employee
603
B. Insurance or collectivisation of claims
604
C. Scope of protection
604
D. Limited compensation, simplified assessment
605
E. Resolution of disputes out of court
607
F. Immunity of employers from damages suits
607
III. Employers’ Liability: Basic Features
608
A. Bases of liability
608
B. Central features of private liability regimes
609
C. Thresholds for establishing civil liability
609
IV. The Revival of Employers’ Liability
610
A. Against the industrial preference
610
B. The promise of social security
612
C. The failure of social security
613
D. Conclusion
616
V. Functional Analysis
616
A. Compensation
617
1. Needs-based interpretation of the compensation goal
617
2. Corrective justice interpretation of the compensation goal
618
B. Deterrence
619
1. Strict liability vs fault-based liability
619
2. Insuring against liability
620
3. Conclusion
622
C. Administrative Costs
623
D. Conclusion
626
VI. Challenges for Workers’ Compensation Systems
626
A. The common root of current challenges
626
B. Inroads into the immunity principle
627
1. The expansion of aggravated fault
627
2. The substantive issues: Full income replacement and damages for non-pecuniary losses?
628
3. The administrative issue: upgrading workers’ compensation benefits vs private suits against employers
631
C. Claims against third parties
633
1. The US experience
633
2. Explanation
634
3. Evaluation
636
VII. Final Remarks
637
Index
639
Publications
649