Should Social Insurance Pay Compensation for Pain and Suffering?

Abstract

For a historical survey oftort law, see H. and L.Mazeaud and A.Tunc,Jtesponsabilit£dvUell95T)nn. Met seq, 42 ctseq. 2. In Germany, laws were enacted concerning social insurance beginning in 1883, on the basis of the Kaiser's Proclamation of 1881 which included Bismarck's programmes. A few years later, similar laws were passed in a number of other European States, and later, in other States the world over. JULY 1982] Compensation for Pain and Suffering 551 I am referring particularly to the provisions based on the no-fault principle which were adopted and which have achieved great success in certain fields. The most important of these fields is that of compensation for automobile injuries: many significant, innovative laws have been legislated in various States on this subject, beginning with the Law passed in Saskatchewan in 1946. The Israeli Road Accident Victims (Compensation) Law, 1975, is prominent amongst these Laws. In Puerto Rica, the law institutes a system of real social insurance in this field, and in a number of other cases, too, 3 the insuring body is a government agency. Another field in which the principle of strict liability is taking root in the U.S.A., Great Britain and other States is that of compensation for product injuries. Israel joined the ranks of these States recently with its passage of the Defective Products Liability Law, 1980. Medical injuries constitute yet another field, and at this point it is appropriate to mention that one State-Swedenhas passed a Law, which came into force in 1975, 4 instituting compulsory insurance for medical injuries. It is noteworthy that with respect to compensation for crime victims, by 1980 at least 44 States had special programmes, all administered by State agencies, • and in some cases, by those very bodies responsible for social security in general or for workmen's compensation. Worthy of special mention in this context is the revolutionary New Zealand Law which came into force in 1974. s This Law belongs in the category of social insurance, and it instituted No-Fault liability and insurance with respect to all accident victims, awarding them relatively high compensation. In view of this impressive evolution, the question arises as to whether, and to what extent, social insurance, considering its exclusive nature, its principles and special aims, is capable of and ready to absorb these provisions concerning compensation for personal injury which are grounded in tort law, and whether there is any purpose in working towards comprehensive application of this trend, since, inter alia, these provisions include the awarding of compensation for pain and suffering. The present article is devoted to examining these problems. II. ON SOCIAL INSURANCE IN GENERAL To enable me to answer the above questions, I must mention, albeit briefly, several of the main characteristics and peculiarities of social insurance in our times. 3. E.g. in the Canadian Provinces of British Columbia, Manitoba and Saskatchewan, and in two Australian States (Victoria and Tasmania). 4.

Medical Injury Compensation: Beyond 'No-Fault'

“…23 Indeed, some have been moved, partly by this concern, to advocate the reform of no-fault schemes. 24 However, the precise connections between fairness-based concerns and the various policy proposals that they have motivated remain relatively unexplored. Most authors either focus on the unfairness of existing no-fault schemes, making only brief and speculative reform proposals, or recommend detailed reforms but without basing these on a clear argument from fairness-based premises.…”