Insurance and Expanding Systemic Risks (Policy Issues in by Michael Faure

By Michael Faure

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Extra resources for Insurance and Expanding Systemic Risks (Policy Issues in Insurance, No. 5)

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The alleged compensating benefit of the strict liability in those cases is therefore doubtful. 40 INSURANCE AND EXPANDING SYSTEMS RISKS No. 5 – ISBN 92-64-10289-2 – © OECD 2003 2. EXPANDING LIABILITY FOR SYSTEMIC RISKS? 2. Redistribution? One obviously should make a careful distinction between on the one hand the efficiency arguments, advanced in the Shavellian economic analysis on the one hand and distributional arguments on the other hand. So far we have focused on these efficiency arguments, which show that in particular cases there might be an argument in favour of strict liability.

Whereas economists stress the importance of tort rules as having an ex ante effect on prevention, traditional tort lawyers stress the ex post compensatory function of tort law. If one would exaggerate the difference between the traditional economic and the classic legal approach one would state that the economist is interested in prevention of accidents, whereas the lawyer is interested in victim compensation. However, as is often the case with generalities like these, reality is often more balanced.

111 In both cases one is confronted with a causal uncertainty, whereby the burden of proof is shifted to the enterprise. Since causation issues are very often difficult to prove with scientific certainty, this shift of the risk of proof will often be decisive for the outcome of the case. Legal systems other than the Dutch system have also been confronted with the consequences of causal uncertainty. In a Canadian case the Supreme Court of Canada rejected applying an apportionment of damages approach.

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