The Gazette 1988

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 no 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 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 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.

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