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Employers' Liability and Workers' Compensation: Australia&Mark Lunney1

Ⅰ. Introduction1

A. Basic system of compensation and liability1

B. Interaction with other institutions3

C. Empirical evidence4

Ⅱ. Workers' Compensation5

A. Scope of cover5

1. When can workers' compensation be claimed?7

2. Spatial and temporal dimensions of course of employment8

B. Compensation trigger10

C. Scope of protection14

D. Heads and levels of benefit15

1. Medical care15

2. Rehabilitation assistance16

3. Lost earnings17

4. Non-pecuniary losses19

5. Dependents' benefits20

6. Comparison with damages in tort22

7. Lump sum or periodical payments?23

E. Funding systems25

1. Types of system25

2. Contribution to the workers' compensation fund27

3. Incentives27

F. Administration and adjudication of claims28

1. Organisational framework of workers' compensation institutions28

2. Who decides claims for benefits28

3. Reviews and appeals: special tribunals or general civil justice system?29

4. Speed of claims' resolution and administrative costs30

G. Rights of recourse of workers' compensation institutions32

1. Recourse against employer32

2. Recourse against a co-worker32

3. Recourse against third parties33

H. Interaction with general social welfare provision and private insurance34

1. Fund of first resort?34

2. Deductibility of benefits34

3. Recourse of social welfare agencies, social health insurance,private health insurers against workers' compensation institutions35

Ⅰ. Interaction with employers' liability36

1. Availability of damages in addition to workers' compensation benefits36

2. Deductibility of benefits provided by workers' compensation in action against employer37

3. Subrogation of workers' compensation into the claim of worker against employer38

Ⅲ. Employers' Liability38

A. Classification38

1. Contractor tort?38

2. General law or a special category39

B. Elements of liability39

1. Liability of employers for their own acts or omissions39

2. Liability of employers for the acts or omissions of their employees and others39

3. Relevance of health and safety legislation in establishing liability40

4. Overall a fault-based or strict liability system41

5. Causation41

6. Effect of victim's contributory conduct41

C. Scope of protection42

D. Heads and levels of damages43

1. Same level as in other cases of personal injury43

2. Heads of recoverable damage44

3. Costs of medical care44

4. Costs of rehabilitation assistance44

5. Lost earnings, loss of earning capacity, and loss of pension entitlements45

6. Non-pecuniary loss45

7. Dependents46

8. Form of payment46

E. Administration of claims47

1. Courts or specialised tribunals47

2. General civil procedure or special procedures?47

3. Reviews and appeals48

4. Speed of claims' resolution and administrative costs48

F. Rights of recourse49

1. Against other employees or their liability insurer?49

2. Against third parties49

G. Interaction with social welfare systems and private insurance50

1. Deductibility of benefits received from social welfare agencies50

2. Recourse of social welfare agencies and private insurers against the employer50

H. Insurance51

1. Voluntary or mandatory?51

2. General liability insurance or special policy51

3. Basic principles of employers' liability insurance52

Ⅳ. Evaluation and Conclusions53

A. Compensation53

B. Prevention54

C. Overall costs55

D. Interaction between workers' compensation and private law55

E. Plans for reform56

F. Overall quality of each system independently and in combination58

Ernst Karner and Felix KernbichlerEmployers' Liability and Workers' Compensation: Austria63

Ⅰ. Introduction63

A. Basic system of compensation and liability63

1. Historical development63

2. Basic system65

3. Relation to private law remedies66

B. Interaction with other institutions67

C. Empirical evidence68

Ⅱ. Workers' Compensation68

A. Scope of cover68

1. Protected sphere of life69

2. Attribution70

B. Compensation trigger72

C. Scope of protection73

1. Personal injury73

2. Sexual harassment73

3. Dignitary injuries74

4. Property damage and pure economic loss74

D. Heads and levels of benefit75

1. Benefits in kind75

2. Cash benefits76

E. Funding systems81

1. Funding through contributions81

2. Financial equalisation (Finanzausgleich)83

F. Administration and adjudication of claims83

G. Rights of recourse of workers' compensation institutions87

1. General87

2. Recourse against the employer89

3. Recourse against a colleague?90

4. Recourse against third parties91

H. Interaction with general social welfare provision and private insurance91

1. Relationship between health and accident insurance91

2. Relationship between Social Insurance and Minimum Insurance93

Ⅰ. Interaction with employers' liability93

Ⅲ. Employers' Liability94

A. Classification94

1. General tortious fault-based and the employer's liability privilege94

2. Work accidents caused by vehicles for which there is enhanced liability98

B. Elements of liability98

1. Fault-based liability98

2. Strict liability100

3. Liability for risks without fault101

C. Scope of protection103

D. Heads and levels of damages103

1. Personal injuries103

2. Material damages104

E. Administration of claims104

F. Rights of recourse105

G. Interaction with social welfare systems and private insurance105

H. Insurance105

Ⅳ. Evaluation and Conclusions106

A. Compensation106

B. Prevention106

C. Overall costs107

D. Interaction between workers' compensation and private law107

E. Plans for reform109

F. Overall quality of each system independently and in combination110

Vibe UlfbeckEmployers' Liability and Workers' Compensation: Denmark111

Ⅰ. Introduction111

A. Basic system of compensation and liability111

B. Interaction with other institutions112

C. Empirical evidence112

Ⅱ. Workers' Compensation112

A. Scope of cover112

B. Compensation trigger115

C. Scope of protection117

D. Heads and levels of benefit118

E. Funding systems120

F. Administration and adjudication of claims120

G. Rights of recourse of workers' compensation institutions121

H. Interaction with general social welfare provision and private insurance122

Ⅰ. Interaction with employers' liability123

Ⅲ. Employers' Liability124

A. Classification124

B. Elements of liability125

C. Scope of protection127

D. Heads and levels of damages128

E. Administration of claims130

F. Rights of recourse131

G. Interaction with social welfare systems and private insurance132

H. Insurance133

Ⅳ. Evaluation and Conclusions134

A. Compensation134

B. Prevention134

C. Overall costs135

D. Interaction between workers' compensation and private law135

E. Plans for reform135

F. Overall quality of each system independently and in combination135

Richard LewisEmployers' Liability and Workers' Compensation: England and Wales137

Ⅰ. Introduction137

A. The basic system of compensation and liability137

1. Tort138

2. Workers' compensation140

3. Why preferential compensation for workers?141

B. Interaction with other institutions143

C. Empirical evidence143

Ⅱ. Workers' Compensation144

A. Scope of cover144

1. Workers covered144

2. Spatial, temporal and other limitations145

3. Effect of the victim's contributory negligence152

B. Compensation trigger153

1. Accidents154

2. Disease156

C. Scope of protection159

1. Personal injury159

2. Other than personal injury161

D. Heads and levels of benefit161

1. Assessment163

2. Rate of payment165

3. Comparison of the industrial injuries pension with damages in tort166

E. Funding systems167

F. Administration and adjudication of claims168

1. Claims and appeals168

2. Tribunals not courts169

3. Administrative cost169

G. Right of recourse of workers' compensation institutions170

1. Rights of recourse against the employer170

2. Rights of recourse against a co-worker or third party171

H. Interaction with general social welfare provision and private insurance171

1. The sources of funding171

2. Deductibility of benefits172

Ⅰ. Interaction with employers' liability173

Ⅲ. Employers' Liability174

A. Classification174

B. Elements of liability174

1. Vicarious liability175

2. Breach of common law duty177

3. Breach of statutory duty178

4. Effect of the victim's contributory conduct179

C. Scope of protection180

1. Accidents and disease180

2. Personal injury181

3. Other than personal injury182

D. Heads and levels of damages184

E. Administration of claims185

1. Number and cost of claims186

2. Insurers and the administration of the tort system187

3. The speed of settlement189

4. The administrative cost of tort189

F. Rights of recourse190

1. Rights of recourse against other employees190

2. Rights of recourse against third parties191

G. Interaction with social welfare systems and private insurance191

1. Recourse of social security agency against the employer191

2. Reducing damages to take account of the benefits paid193

3. Recovering the cost of National Health Service treatment193

H. Insurance194

1. The scope of compulsory insurance194

2. Policy limits and insurance triggers195

3. Apportionment196

Ⅳ. Evaluation and Conclusions197

A. Compensation197

1. Scope of each scheme197

2. Amount and purpose of compensation197

3. Fault and no-fault199

B. Prevention199

C. Overall costs200

D. Interaction between workers' compensation and private law201

E. Plans for reform201

F. Overall quality of each system independently and in combination202

Florence G'sell and Isabelle VeillardEmployers' Liability and Workers' Compensation: France203

Ⅰ. Introduction203

A. Basic system of compensation and liability203

B. Interaction with other institutions204

C. Empirical evidence204

Ⅱ. Workers' Compensation206

A. Scope of cover206

1. Workers covered206

2. Spatial, temporal and other limitations207

3. Effects of the victim's contributory conduct212

B. Compensation trigger213

1. Accidents213

2. Diseases214

C. Scope of protection217

1. Personal injury217

2. Pure economic loss218

3. Property damage220

4. Sexual harassment- dignitary injuries220

D. Heads and levels of benefit221

1. Medical care and rehabilitation assistance221

2. Lost earnings223

3. Dependents' benefits223

4. Comparison with damages in tort223

5. Lump sum or periodical payments?224

E. Funding systems224

F. Administration and adjudication of claims226

1. Accident226

2. Disease227

3. Litigation227

4. Speed of claims' resolution and administrative costs228

G. Rights of recourse of workers' compensation institutions228

1. Recourse of workers' compensation institutions against employers229

2. Recourse of workers' compensation institutions against co-employees230

3. Recourse of workers' compensation institutions against third parties230

H. Interaction with general social welfare provision and private insurance230

1. Fund of first resort230

2. Deductibility of benefits231

3. Recourse of social welfare agencies, social health insurance,private health insurers, etc, against workers' compensation institutions?232

Ⅰ. Interaction with employers' liability232

1. Availability of damages in addition to workers' compensation benefits?232

2. Deductibility of benefits provided by workers' compensation institutions from claim against employer (collateral source rule)233

3. Subrogation of workers' compensation institutions into the claim of workers against employer234

Ⅲ. Employers' Liability234

A. Classification234

1. Inexcusable negligence (art L 452-1 Social Security Code, CSS)235

2. Wilful misconduct (art L 452-5 CSS)236

3. Liability of a third party (art L 454-1 CSS)237

4. Traffic accident238

5. Criminal offence238

B. Elements of liability241

1. Liability of employers for their own acts or omissions241

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)244

3. Relevance ofhealth and safety legislation in establishing liability245

4. Overall a fault-based or strict liability?246

5. Causation246

6. Effect of the victim's contributory conduct247

C. Scope of protection248

1. Inexcusable negligence on the part of the employer248

2. General civil liability249

D. Heads and levels of damages251

1. Inexcusable negligence of the employer251

2. General civil liability251

E. Administration of claims254

1. Inexcusable negligence254

2. Civil liability255

F. Rights of recourse255

1. In case of employers' liability255

2. In case of a third party's liability257

G. Interaction with social welfare systems and private insurance257

H. Insurance259

Ⅳ. Evaluation and Conclusions259

A. Compensation259

B. Prevention260

C. Overall costs261

D. Interaction between workers' compensation and private law262

E. Plans for reform263

F. Overall quality of each system independently and in combination264

Raimund WaltermannEmployers' Liability and Workers' Compensation: Germany265

Ⅰ. Introduction265

A. Basic system of compensation and liability265

1. History and expansions265

2. Insurance and liability266

B. Interaction with other institutions266

C. Empirical evidence266

Ⅱ. Workers' Compensation267

A. Scope of cover267

B. Compensation trigger268

1. Accidents268

2. Diseases268

C. Scope of protection269

1. Occupational accident269

2. Occupational disease270

3. Insured 'categories of damage'.270

D. Heads and levels of benefit270

E. Funding systems274

F. Administration and adjudication of claims275

G. Rights of recourse of workers' compensation institutions276

H. Interaction with general social welfare provision and private insurance277

Ⅰ. Interaction with employers' liability277

Ⅲ. Employers' Liability280

A. Classification281

B. Elements of liability281

C. Scope of protection283

D. Heads and levels of damages285

1. Personal injuries285

2. Material damages287

3. Liability agreements287

E. Administration of claims287

F. Rights of recourse288

1. Against other employees who caused the harm288

2. Against third parties (eg equipment/component manufacturers, suppliers of raw materials, etc)288

G. Interaction with social welfare systems and private insurance289

1. Problems concerning the extended exemption from liability289

2. Are benefits received from social welfare agencies deducted from claims against the employer?289

3. Recourse of social welfare agencies and private insurers against the employer290

H. Insurance290

Ⅳ. Evaluation and Conclusions291

A. Compensation291

B. Prevention292

C. Overall costs293

D. Interaction between workers' compensation and private law293

E. Plans for reform294

F. Overall quality of each system independently and in combination294

1. Statutory accident insurance294

2. Employers' liability296

Alessandro P Scarso and Massimo FogliaEmployers' Liability and Workers' Compensation: Italy297

Ⅰ. Introduction297

A. Basic system of compensation and liability297

B. Interaction with other institutions299

C. Empirical evidence299

Ⅱ. Workers' Compensation301

A. Scope of cover301

B. Compensation trigger304

C. Scope of protection305

D. Heads and levels of benefit306

1. Medical care and rehabilitation assistance306

2. Non-pecuniary losses307

3. Dependent's benefits and benefits to their relatives310

4. Comparison with damages in tort310

5. Lump sums or periodical payments?311

E. Funding systems312

F. Administration and adjudication of claims313

G. Rights of recourse of workers' compensation institutions315

H. Interaction with general social welfare provision and private insurance316

Ⅰ. Interaction with employers' liability316

Ⅲ. Employers' Liability317

A. Classification317

B. Elements of liability318

C. Scope of protection322

D. Heads and levels of damages323

E. Administration of claims326

F. Rights of recourse326

G. Interaction with social welfare systems and private insurance327

H. Insurance328

Ⅳ. Evaluation and Conclusions328

A. Compensation328

B. Prevention328

C. Overall costs329

D. Interaction between workers' compensation and private law330

E. Plans for reform330

F. Overall quality of each system independently and in combination331

Keizo Yamamoto and Tomohiro YoshimasaEmployers' Liability and Workers' Compensation: Japan333

Ⅰ. Introduction333

A. Basic system of compensation and liability333

B. Interaction with other institutions334

C. Empirical evidence334

Ⅱ. Workers' Compensation335

A. Scope of cover335

B. Compensation trigger335

C. Scope of protection336

D. Heads and levels of benefit336

1. Medical compensation336

2. Compensation for absence from work337

3. Compensation for disabilities337

4. Compensation for bereaved family338

5. Non-pecuniary losses338

6. Medical examination benefits338

E. Funding systems339

F. Administration and adjudication of claims339

G. Right of recourse of workers' compensation institutions340

H. Interaction with general social welfare provision and private insurance340

1. Interaction with general social welfare provision340

2. Interaction with private insurance342

Ⅰ. Interaction with employers' liability342

Ⅲ. Employers' Liability343

A. Classification343

B. Elements of liability344

C. Scope of protection345

D. Heads and levels of damages345

E. Administration of claims346

F. Rights of recourse346

1. Against another employee346

2. Against third parties347

G. Interaction with social welfare systems and private insurance347

H. Insurance348

Ⅳ. Evaluation and Conclusions348

A. Compensation348

B. Prevention349

C. Overall costs349

D. Interaction between workers' compensation and private law350

E. Plans for reform350

F. Overall quality of each system independently and in combination350

Siewert D LindenberghEmployers' Liability and Workers' Compensation: The Netherlands351

Ⅰ. Introduction351

A. Basic system of compensation and liability351

B. Interaction with other institutions351

C. Empirical evidence353

Ⅱ. Workers' Compensation353

Ⅲ. Employers' Liability355

A. Classification355

B. Elements of liability357

C. Scope of protection361

D. Heads and levels of damages362

E. Administration of claims363

F. Rights of recourse363

G. Interaction with social welfare systems and private insurance364

H. Insurance364

Ⅳ. Evaluation and Conclusions365

A. Compensation365

B. Prevention366

C. Overall costs366

D. Interaction between workers' compensation and private law367

E. Plans for reform367

F. Overall quality of each system independently and in combination368

Dominika Dorre-NowakEmployers' Liability and Workers' Compensation: Poland369

Ⅰ. Introduction369

A. Basic system of compensation and liability369

B. Interaction with other institutions370

C. Empirical evidence370

Ⅱ. Workers' Compensation370

A. Scope of cover370

1. Workers covered370

2. Spatial, temporal and other limitations371

3. Effect of the victim's contributory conduct371

B. Compensation trigger373

1. Accidents373

2. Disease (occupational diseases)379

C. Scope of protection381

1. Personal injury381

2. Sexual harassment381

3. Property damage381

4. Pure economic loss381

D. Heads and levels of benefit381

1. Medical care381

2. Rehabilitation assistance383

3. Lost earnings, loss of earning capacity and loss of pension entitlements383

4. Non-pecuniary losses383

5. Dependant's benefits383

6. Comparison with damages in tort384

7. Lump sum or periodical payments384

E. Funding systems384

1. Type of system384

2. Incentives386

F. Administration and adjudication of claims386

1. Organisational framework of workers' compensation institutions386

2. Reviews and appeals: Special tribunals or general civil justice system?386

3. Speed of claims' resolution and administrative costs387

G. Rights of recourse of workers' compensation institutions387

H. Interaction with general social welfare provision and private insurance387

Ⅰ. Interaction with employers' liability387

Ⅲ. Employers' Liability388

A. Classification388

1. Contractor tort?388

2. General law or special category?388

B. Elements of liability388

1. Liability of employers for their own acts and omissions388

2. Liability of employers for the acts or omissions of their employees and others389

3. Overall a fault-based or strict liability?389

4. Causation389

5. Effect of the victim's contributory conduct389

C. Scope of protection389

1. Personal injury389

2. Sexual harassment390

3. Dignitary injuries391

4. Property damage391

5. Pure economic loss392

D. Heads and levels of damages392

1. Main heads of recoverable damages392

2. Costs of medical care392

3. Costs of rehabilitation assistance393

4. Lost earnings, loss of earning capacity and loss of pension entitlements393

5. Dependents' benefits393

6. Non-pecuniary losses393

7. Form of payment393

E. Administration of claims394

1. Courts or specialised tribunals?394

2. General civil procedure or special procedures394

3. Reviews and appeals394

4. Speed of claims' resolution and administrative cost394

F. Rights of recourse395

1. Against employees395

2. Against third parties395

G. Interaction with social welfare systems and private insurance395

H. Insurance395

1. Voluntary or mandatory?395

2. General liability insurance or special policy?395

3. Basic principles of employers' liability insurance396

Ⅳ. Evaluation and Conclusions396

A. Compensation396

B. Prevention396

C. Overall costs397

D. Interaction between workers' compensation and private law397

E. Plans for reform397

F. Overall quality of each system independently and in combination397

Christian Alunaru and Lucian BojinEmployers' Liability and Workers' Compensation: Romania399

Ⅰ. Introduction399

A. Basic system of compensation and liability399

B. Interaction with other institutions400

C. Empirical evidence401

Ⅱ. Workers' Compensation402

A. Scope of cover402

1. Spatial limits403

2. Temporal limitations404

B. Compensation trigger404

C. Scope of protection406

1. Personal injury406

2. Sexual harassment and injury to one's dignity407

3. Property damage and pure economic loss408

D. Heads and levels of benefit409

1. Medical care409

2. Rehabilitation assistance410

3. Lost earnings, loss of earning capacity and loss of pension entitlements411

4. Expenses refund412

5. Non-pecuniary losses413

6. Dependants' benefit413

7. Comparison with damages in tort414

8. Form of payment414

E. Funding systems414

1. Type of system414

2. Contributions to the workers' compensation fund415

3. Risk-rating of contribution415

F. Administration and adjudication of claims416

1. Organisational framework of workers compensation institutions416

2. Who decides over claims for benefits?417

3. Reviews and appeals: special tribunals or general civil justice system?418

4. Speed of claims resolution and administrative costs419

G. Rights of recourse of workers' compensation institutions419

1. Recourse against the employer419

2. Recourse against a co-worker or against third parties420

H. Interaction with general social welfare provisions and private insurance420

I. Interaction with employers' liability421

Ⅲ. Employers' Liability421

A. Classification421

B. Elements of liability422

1. Liability of employers for their own acts or omissions422

2. Liability of employers for the acts or omissions of their employees and others423

3. Relevance of health and safety legislation in establishing liability424

4. Overall a fault-based or strict liability system?424

5. Causation425

6. Effect of the victim's contributory conduct426

C. Scope of protection426

1. Personal injury427

2. Sexual harassment and injuries to dignity427

3. Property damage and pure economic loss428

D. Heads and levels of damages428

E. Administration of claims430

F. Rights of recourse430

G. Interaction with the social welfare system and private insurance431

H. Insurance431

Ⅳ. Evaluation and Conclusions432

A. Compensation432

B. Prevention433

C. Overall costs434

D. Interaction between workers' compensation and private law434

E. Plans for reform434

F. Overall quality of each system independently and in combination435

Michael D Green and Daniel S MurdockEmployers' Liability and Workers' Compensation: United States437

Ⅰ. Introduction437

A. Basic system of compensation and liability437

B. Interaction with other institutions438

C. Empirical evidence438

Ⅱ. Worker's Compensation439

A. Scope of cover439

B. Compensation trigger441

1. The 'accident' requirement441

2. Arising out of and in the course of employment442

3. Occupational Disease444

C. Scope of protection446

1. Sexual Harassment447

2. Dignitary Injuries449

3. Property Damage449

4. Pure Economic Loss450

D. Heads and levels of benefit450

1. Medical Care450

2. Rehabilitation453

3. Lost Earnings455

4. Non-Pecuniary Losses459

5. Dependents' Benefits459

6. Comparison with Tort461

7. Lump Sum Payments462

E. Funding systems463

F. Administration and adjudication of claims465

G. Rights of recourse of workers' compensation institutions467

H. Interaction with general social welfare provision and private insurance468

Ⅰ. Interaction with employers' liability470

Ⅲ. Employers' Liability470

A. Classification470

B. Elements of liability471

C. Scope of protection473

D. Heads and levels of damages474

E. Administration of claims474

F. Rights of recourse475

G. Interaction with social welfare systems and private insurance475

H. Insurance476

Ⅳ. Evaluation and Conclusions476

A. Compensation477

B. Prevention478

C. Overall costs479

D. Interaction between workers' compensation and private law480

E. Plans for reform481

F. Overall quality of each system independently and in combination481

Thomas ThiedeThe European Coordination of Employers' Liability and Workers'Compensation485

Ⅰ. Introduction485

Ⅱ. Empirical Evidence486

Ⅲ. Workers' Compensation487

A. Limitation to national territory487

B. European coordination of social security systems488

C. Sources of law489

D. Scope of cover491

E. General rules for determining the legislation applicable492

1. General application of the law of the country of employment492

2. Special provisions for determining the legislation applicable493

3. Pursuit of activities in two or more Member States494

4. Freedom of choice495

F. Special provisions for determining the legislation applicable in cases of accidents at work and occupational diseases496

G. Administration and adjudication of claims497

H. Rights of recourse of workers' compensation institutions and interaction with employers' liability498

Ⅳ. Employers' Liability501

A. Classification501

B. The Law applicable to contractual duties505

1. Source of law505

2. Scope of protection505

3. General rules for determining the legislation applicable506

4. Special provisions for individual employment contracts508

C. The Law applicable to extra-contractual duties510

1. Source oflaw510

2. Scope of protection510

3. General rule511

4. Escape clause511

D. Adjudication of claims512

1. Source of law512

2. Scope512

3. Rules for international jurisdiction in relation to contracts of employment513

E. Rights of recourse and interaction between employers' liability and workers' compensation515

Ⅴ. Alternatives, Evaluation and Conclusions515

Ken OliphantThe Changing Landscape of Work Injury Claims: Challenges for Employers' Liability and Workers' Compensation519

Ⅰ. Introduction519

A. The Changing Landscape of Work Injury Claims519

B. The social construction of injury claims521

C. The compensation and liability framework523

1. Workers' compensation523

2. Employers' liability524

D. Plan526

Ⅱ. Recognition issues ('naming problems')526

A. Issues for Workers' Compensation526

1. An accident preference526

2. Disease529

3. Mental illness533

4. Harassment and discrimination536

B. Issues for employers' liability537

1. An accident preference537

2. Disease539

3. Mental illness539

4. Harassment and discrimination540

Ⅲ. Attribution issues ('blaming problems')542

A. Issues for employers' liability542

1. A violation of the required standard of care543

2. Causation545

3. Time limits (prescription)546

4. Insurance548

5. The risk of insolvency549

B. Issues for workers' compensation550

Ⅳ. Challenges for Employers' Liability and Workers' Compensation552

A. Introduction552

B. Challenges for Workers' Compensation553

C. Challenges for Employers' Liability553

D. Coordination of the two systems556

Ⅴ. Conclusion558

Gerhard WagnerNew Perspectives on Employers' Liability - Basic Policy Issues561

Ⅰ. Introduction561

Ⅱ. Systems of Workers' Compensation: Basic Features563

A. Compensation regardless of fault of employer and contributory fault of employee563

B. Insurance or collectivisation of claims564

C. Scope of protection564

D. Limited compensation, simplified assessment565

E. Resolution of disputes out of court567

F. Immunity of employers from damages suits567

Ⅲ. Employers' Liability: Basic Features568

A. Bases of liability568

B. Central features of private liability regimes569

C. Thresholds for establishing civil liability569

Ⅳ. The Revival of Employers' Liability570

A. Against the industrial preference570

B. The promise of social security572

C. The failure of social security573

D. Conclusion576

Ⅴ. Functional Analysis576

A. Compensation577

1. Needs-based interpretation of the compensation goal577

2. Corrective justice interpretation of the compensation goal578

B. Deterrence579

1. Strict liability vs fault-based liability579

2. Insuring against liability580

3. Conclusion582

C. Administrative Costs583

D. Conclusion586

Ⅵ. Challenges for Workers' Compensation Systems586

A. The common root of current challenges586

B. Inroads into the immunity principle587

1. The expansion of aggravated fault587

2. The substantive issues: Full income replacement and damages for non-pecuniary losses?588

3. The administrative issue: upgrading workers' compensation benefits vs private suits against employers591

C. Claims against third parties593

1. The US experience593

2. Explanation594

3. Evaluation596

Ⅶ. Final Remarks597

Index599

Publications609