The Gazette 1946-49

GAZETTE

MARCH 1988

(f) Concurrent Wrongdoers

It has been argued in several

states that the rule which

imposes full liability on every

concurrent wrongdoer even

t hough a particular con-

current wrongdoer may have

only contributed in a small

way to the accident, is unjust

and should be changed.

In some cases the reforms

mentioned above are not of general

application but attempt to address

specific problems and specific

types of liability. For example, some

states introduce CAP statutes only

in respect of medical malpractice

actions. Other states see the

neces s i ty to p r o t e ct

pub l ic

authorities from the extending

''ability t hat they have been

exposed to in recent years. It is

suggested that the increased costs

for public authorities has resulted

>n the closure of playgrounds,

swimming pools and other public

amenities. Still others propose to

limit the liability of tavern keepers

who in recent years have found

themselves the target of litigation

in respect of accidents caused by

inebriated customers! In many of

these cases the reaction of state

l eg i s l a t o rs to t he

so - ca l l ed

"insurance crisis" has sometimes

been ill-conceived and hasty. Some

of t he responses have been

primarily political responses born

from the politicians' need to be

seen to be doing something. They

are not always very well thought

out. They can be seen as a " j ump

up and d own" syndrome which is

essentially a political response to

reassure the public that something

is being done in this area. As might

be expected the results have not

always been successful from a law

reform point of view.

The Constitutionality of

the Reforms

Inevitably one supposes, in the

American context at least, once

these measures began to be

introduced their constitutionality

began to be scrutinised. The cons-

titutional challenge came, first, at

the federal level and later at the

s t a te level. Today, one may

summarise the outcome of these

challenges by stating (i) that there

are

s i gn i f i c ant

Federal

constitutional restraints on tort

reforms in the USA today, but (ii)

that at State level very significant

constitutional restraints do exist

and these certainly inhibit state

legislation in this whole area.

At federal level the Supreme

Court has rejected arguments

w h i c h

i nv i t ed

i n t e r f e r ence.

Generally speaking it has adopted

a " hands o f f " policy which is the

normal policy in regard to economic

policies generally in this area. In the

area of economic policy the

Supreme Court feels that such

matters are not its business and

that in these cases it is not its

f unc t i on to double guess the

executive or the legislature. In

particular it has rejected an

invitation to examine whether there

is in fact an "insurance crisis" in

American society. That challenge if

successful would have undermined

the basis for much of the legislation

in question: if no crisis existed then

there would be no justification for

the legislation in question. Further

the U.S. Supreme Court has also

refused to be drawn into an

e x am i na t i on of wh e t h er t he

legislative policies as expressed in

t he pa r t i cu l ar l eg i s l a t i on are

appropriate measures

to further the

stated policy of managing the

"insurance crisis" or whether they

DAVY

STOCKBROKERS

Personal Investment Division

for

SPECIALISED INVESTMENT ADVICE

UNIT LINKED INVESTMENTS

GUARANTEED BONDS

49, Dawson Street, Dublin 2.

Telephone: 797788 Telex: 93968 Fax: 712704