EMPLOYERS'LIABILITY AND WORKERS'COMPENSATIONPDF电子书下载

Employers' Liability and Workers' Compensation: Australia&Mark Lunney 1

Ⅰ. Introduction 1

A. Basic system of compensation and liability 1

B. Interaction with other institutions 3

C. Empirical evidence 4

Ⅱ. Workers' Compensation 5

A. Scope of cover 5

1. When can workers' compensation be claimed? 7

2. Spatial and temporal dimensions of course of employment 8

B. Compensation trigger 10

C. Scope of protection 14

D. Heads and levels of benefit 15

1. Medical care 15

2. Rehabilitation assistance 16

3. Lost earnings 17

4. Non-pecuniary losses 19

5. Dependents' benefits 20

6. Comparison with damages in tort 22

7. Lump sum or periodical payments? 23

E. Funding systems 25

1. Types of system 25

2. Contribution to the workers' compensation fund 27

3. Incentives 27

F. Administration and adjudication of claims 28

1. Organisational framework of workers' compensation institutions 28

2. Who decides claims for benefits 28

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

4. Speed of claims' resolution and administrative costs 30

G. Rights of recourse of workers' compensation institutions 32

1. Recourse against employer 32

2. Recourse against a co-worker 32

3. Recourse against third parties 33

H. Interaction with general social welfare provision and private insurance 34

1. Fund of first resort? 34

2. Deductibility of benefits 34

3. Recourse of social welfare agencies, social health insurance,private health insurers against workers' compensation institutions 35

Ⅰ. Interaction with employers' liability 36

1. Availability of damages in addition to workers' compensation benefits 36

2. Deductibility of benefits provided by workers' compensation in action against employer 37

3. Subrogation of workers' compensation into the claim of worker against employer 38

Ⅲ. Employers' Liability 38

A. Classification 38

1. Contractor tort? 38

2. General law or a special category 39

B. Elements of liability 39

1. Liability of employers for their own acts or omissions 39

2. Liability of employers for the acts or omissions of their employees and others 39

3. Relevance of health and safety legislation in establishing liability 40

4. Overall a fault-based or strict liability system 41

5. Causation 41

6. Effect of victim's contributory conduct 41

C. Scope of protection 42

D. Heads and levels of damages 43

1. Same level as in other cases of personal injury 43

2. Heads of recoverable damage 44

3. Costs of medical care 44

4. Costs of rehabilitation assistance 44

5. Lost earnings, loss of earning capacity, and loss of pension entitlements 45

6. Non-pecuniary loss 45

7. Dependents 46

8. Form of payment 46

E. Administration of claims 47

1. Courts or specialised tribunals 47

2. General civil procedure or special procedures? 47

3. Reviews and appeals 48

4. Speed of claims' resolution and administrative costs 48

F. Rights of recourse 49

1. Against other employees or their liability insurer? 49

2. Against third parties 49

G. Interaction with social welfare systems and private insurance 50

1. Deductibility of benefits received from social welfare agencies 50

2. Recourse of social welfare agencies and private insurers against the employer 50

H. Insurance 51

1. Voluntary or mandatory? 51

2. General liability insurance or special policy 51

3. Basic principles of employers' liability insurance 52

Ⅳ. Evaluation and Conclusions 53

A. Compensation 53

B. Prevention 54

C. Overall costs 55

D. Interaction between workers' compensation and private law 55

E. Plans for reform 56

F. Overall quality of each system independently and in combination 58

Ernst Karner and Felix KernbichlerEmployers' Liability and Workers' Compensation: Austria 63

Ⅰ. Introduction 63

A. Basic system of compensation and liability 63

1. Historical development 63

2. Basic system 65

3. Relation to private law remedies 66

B. Interaction with other institutions 67

C. Empirical evidence 68

Ⅱ. Workers' Compensation 68

A. Scope of cover 68

1. Protected sphere of life 69

2. Attribution 70

B. Compensation trigger 72

C. Scope of protection 73

1. Personal injury 73

2. Sexual harassment 73

3. Dignitary injuries 74

4. Property damage and pure economic loss 74

D. Heads and levels of benefit 75

1. Benefits in kind 75

2. Cash benefits 76

E. Funding systems 81

1. Funding through contributions 81

2. Financial equalisation (Finanzausgleich) 83

F. Administration and adjudication of claims 83

G. Rights of recourse of workers' compensation institutions 87

1. General 87

2. Recourse against the employer 89

3. Recourse against a colleague? 90

4. Recourse against third parties 91

H. Interaction with general social welfare provision and private insurance 91

1. Relationship between health and accident insurance 91

2. Relationship between Social Insurance and Minimum Insurance 93

Ⅰ. Interaction with employers' liability 93

Ⅲ. Employers' Liability 94

A. Classification 94

1. General tortious fault-based and the employer's liability privilege 94

2. Work accidents caused by vehicles for which there is enhanced liability 98

B. Elements of liability 98

1. Fault-based liability 98

2. Strict liability 100

3. Liability for risks without fault 101

C. Scope of protection 103

D. Heads and levels of damages 103

1. Personal injuries 103

2. Material damages 104

E. Administration of claims 104

F. Rights of recourse 105

G. Interaction with social welfare systems and private insurance 105

H. Insurance 105

Ⅳ. Evaluation and Conclusions 106

A. Compensation 106

B. Prevention 106

C. Overall costs 107

D. Interaction between workers' compensation and private law 107

E. Plans for reform 109

F. Overall quality of each system independently and in combination 110

Vibe UlfbeckEmployers' Liability and Workers' Compensation: Denmark 111

Ⅰ. Introduction 111

A. Basic system of compensation and liability 111

B. Interaction with other institutions 112

C. Empirical evidence 112

Ⅱ. Workers' Compensation 112

A. Scope of cover 112

B. Compensation trigger 115

C. Scope of protection 117

D. Heads and levels of benefit 118

E. Funding systems 120

F. Administration and adjudication of claims 120

G. Rights of recourse of workers' compensation institutions 121

H. Interaction with general social welfare provision and private insurance 122

Ⅰ. Interaction with employers' liability 123

Ⅲ. Employers' Liability 124

A. Classification 124

B. Elements of liability 125

C. Scope of protection 127

D. Heads and levels of damages 128

E. Administration of claims 130

F. Rights of recourse 131

G. Interaction with social welfare systems and private insurance 132

H. Insurance 133

Ⅳ. Evaluation and Conclusions 134

A. Compensation 134

B. Prevention 134

C. Overall costs 135

D. Interaction between workers' compensation and private law 135

E. Plans for reform 135

F. Overall quality of each system independently and in combination 135

Richard LewisEmployers' Liability and Workers' Compensation: England and Wales 137

Ⅰ. Introduction 137

A. The basic system of compensation and liability 137

1. Tort 138

2. Workers' compensation 140

3. Why preferential compensation for workers? 141

B. Interaction with other institutions 143

C. Empirical evidence 143

Ⅱ. Workers' Compensation 144

A. Scope of cover 144

1. Workers covered 144

2. Spatial, temporal and other limitations 145

3. Effect of the victim's contributory negligence 152

B. Compensation trigger 153

1. Accidents 154

2. Disease 156

C. Scope of protection 159

1. Personal injury 159

2. Other than personal injury 161

D. Heads and levels of benefit 161

1. Assessment 163

2. Rate of payment 165

3. Comparison of the industrial injuries pension with damages in tort 166

E. Funding systems 167

F. Administration and adjudication of claims 168

1. Claims and appeals 168

2. Tribunals not courts 169

3. Administrative cost 169

G. Right of recourse of workers' compensation institutions 170

1. Rights of recourse against the employer 170

2. Rights of recourse against a co-worker or third party 171

H. Interaction with general social welfare provision and private insurance 171

1. The sources of funding 171

2. Deductibility of benefits 172

Ⅰ. Interaction with employers' liability 173

Ⅲ. Employers' Liability 174

A. Classification 174

B. Elements of liability 174

1. Vicarious liability 175

2. Breach of common law duty 177

3. Breach of statutory duty 178

4. Effect of the victim's contributory conduct 179

C. Scope of protection 180

1. Accidents and disease 180

2. Personal injury 181

3. Other than personal injury 182

D. Heads and levels of damages 184

E. Administration of claims 185

1. Number and cost of claims 186

2. Insurers and the administration of the tort system 187

3. The speed of settlement 189

4. The administrative cost of tort 189

F. Rights of recourse 190

1. Rights of recourse against other employees 190

2. Rights of recourse against third parties 191

G. Interaction with social welfare systems and private insurance 191

1. Recourse of social security agency against the employer 191

2. Reducing damages to take account of the benefits paid 193

3. Recovering the cost of National Health Service treatment 193

H. Insurance 194

1. The scope of compulsory insurance 194

2. Policy limits and insurance triggers 195

3. Apportionment 196

Ⅳ. Evaluation and Conclusions 197

A. Compensation 197

1. Scope of each scheme 197

2. Amount and purpose of compensation 197

3. Fault and no-fault 199

B. Prevention 199

C. Overall costs 200

D. Interaction between workers' compensation and private law 201

E. Plans for reform 201

F. Overall quality of each system independently and in combination 202

Florence G'sell and Isabelle VeillardEmployers' Liability and Workers' Compensation: France 203

Ⅰ. Introduction 203

A. Basic system of compensation and liability 203

B. Interaction with other institutions 204

C. Empirical evidence 204

Ⅱ. Workers' Compensation 206

A. Scope of cover 206

1. Workers covered 206

2. Spatial, temporal and other limitations 207

3. Effects of the victim's contributory conduct 212

B. Compensation trigger 213

1. Accidents 213

2. Diseases 214

C. Scope of protection 217

1. Personal injury 217

2. Pure economic loss 218

3. Property damage 220

4. Sexual harassment- dignitary injuries 220

D. Heads and levels of benefit 221

1. Medical care and rehabilitation assistance 221

2. Lost earnings 223

3. Dependents' benefits 223

4. Comparison with damages in tort 223

5. Lump sum or periodical payments? 224

E. Funding systems 224

F. Administration and adjudication of claims 226

1. Accident 226

2. Disease 227

3. Litigation 227

4. Speed of claims' resolution and administrative costs 228

G. Rights of recourse of workers' compensation institutions 228

1. Recourse of workers' compensation institutions against employers 229

2. Recourse of workers' compensation institutions against co-employees 230

3. Recourse of workers' compensation institutions against third parties 230

H. Interaction with general social welfare provision and private insurance 230

1. Fund of first resort 230

2. Deductibility of benefits 231

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

Ⅰ. Interaction with employers' liability 232

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 employer 234

Ⅲ. Employers' Liability 234

A. Classification 234

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 accident 238

5. Criminal offence 238

B. Elements of liability 241

1. Liability of employers for their own acts or omissions 241

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 liability 245

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

5. Causation 246

6. Effect of the victim's contributory conduct 247

C. Scope of protection 248

1. Inexcusable negligence on the part of the employer 248

2. General civil liability 249

D. Heads and levels of damages 251

1. Inexcusable negligence of the employer 251

2. General civil liability 251

E. Administration of claims 254

1. Inexcusable negligence 254

2. Civil liability 255

F. Rights of recourse 255

1. In case of employers' liability 255

2. In case of a third party's liability 257

G. Interaction with social welfare systems and private insurance 257

H. Insurance 259

Ⅳ. Evaluation and Conclusions 259

A. Compensation 259

B. Prevention 260

C. Overall costs 261

D. Interaction between workers' compensation and private law 262

E. Plans for reform 263

F. Overall quality of each system independently and in combination 264

Raimund WaltermannEmployers' Liability and Workers' Compensation: Germany 265

Ⅰ. Introduction 265

A. Basic system of compensation and liability 265

1. History and expansions 265

2. Insurance and liability 266

B. Interaction with other institutions 266

C. Empirical evidence 266

Ⅱ. Workers' Compensation 267

A. Scope of cover 267

B. Compensation trigger 268

1. Accidents 268

2. Diseases 268

C. Scope of protection 269

1. Occupational accident 269

2. Occupational disease 270

3. Insured 'categories of damage'. 270

D. Heads and levels of benefit 270

E. Funding systems 274

F. Administration and adjudication of claims 275

G. Rights of recourse of workers' compensation institutions 276

H. Interaction with general social welfare provision and private insurance 277

Ⅰ. Interaction with employers' liability 277

Ⅲ. Employers' Liability 280

A. Classification 281

B. Elements of liability 281

C. Scope of protection 283

D. Heads and levels of damages 285

1. Personal injuries 285

2. Material damages 287

3. Liability agreements 287

E. Administration of claims 287

F. Rights of recourse 288

1. Against other employees who caused the harm 288

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

G. Interaction with social welfare systems and private insurance 289

1. Problems concerning the extended exemption from liability 289

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 employer 290

H. Insurance 290

Ⅳ. Evaluation and Conclusions 291

A. Compensation 291

B. Prevention 292

C. Overall costs 293

D. Interaction between workers' compensation and private law 293

E. Plans for reform 294

F. Overall quality of each system independently and in combination 294

1. Statutory accident insurance 294

2. Employers' liability 296

Alessandro P Scarso and Massimo FogliaEmployers' Liability and Workers' Compensation: Italy 297

Ⅰ. Introduction 297

A. Basic system of compensation and liability 297

B. Interaction with other institutions 299

C. Empirical evidence 299

Ⅱ. Workers' Compensation 301

A. Scope of cover 301

B. Compensation trigger 304

C. Scope of protection 305

D. Heads and levels of benefit 306

1. Medical care and rehabilitation assistance 306

2. Non-pecuniary losses 307

3. Dependent's benefits and benefits to their relatives 310

4. Comparison with damages in tort 310

5. Lump sums or periodical payments? 311

E. Funding systems 312

F. Administration and adjudication of claims 313

G. Rights of recourse of workers' compensation institutions 315

H. Interaction with general social welfare provision and private insurance 316

Ⅰ. Interaction with employers' liability 316

Ⅲ. Employers' Liability 317

A. Classification 317

B. Elements of liability 318

C. Scope of protection 322

D. Heads and levels of damages 323

E. Administration of claims 326

F. Rights of recourse 326

G. Interaction with social welfare systems and private insurance 327

H. Insurance 328

Ⅳ. Evaluation and Conclusions 328

A. Compensation 328

B. Prevention 328

C. Overall costs 329

D. Interaction between workers' compensation and private law 330

E. Plans for reform 330

F. Overall quality of each system independently and in combination 331

Keizo Yamamoto and Tomohiro YoshimasaEmployers' Liability and Workers' Compensation: Japan 333

Ⅰ. Introduction 333

A. Basic system of compensation and liability 333

B. Interaction with other institutions 334

C. Empirical evidence 334

Ⅱ. Workers' Compensation 335

A. Scope of cover 335

B. Compensation trigger 335

C. Scope of protection 336

D. Heads and levels of benefit 336

1. Medical compensation 336

2. Compensation for absence from work 337

3. Compensation for disabilities 337

4. Compensation for bereaved family 338

5. Non-pecuniary losses 338

6. Medical examination benefits 338

E. Funding systems 339

F. Administration and adjudication of claims 339

G. Right of recourse of workers' compensation institutions 340

H. Interaction with general social welfare provision and private insurance 340

1. Interaction with general social welfare provision 340

2. Interaction with private insurance 342

Ⅰ. Interaction with employers' liability 342

Ⅲ. Employers' Liability 343

A. Classification 343

B. Elements of liability 344

C. Scope of protection 345

D. Heads and levels of damages 345

E. Administration of claims 346

F. Rights of recourse 346

1. Against another employee 346

2. Against third parties 347

G. Interaction with social welfare systems and private insurance 347

H. Insurance 348

Ⅳ. Evaluation and Conclusions 348

A. Compensation 348

B. Prevention 349

C. Overall costs 349

D. Interaction between workers' compensation and private law 350

E. Plans for reform 350

F. Overall quality of each system independently and in combination 350

Siewert D LindenberghEmployers' Liability and Workers' Compensation: The Netherlands 351

Ⅰ. Introduction 351

A. Basic system of compensation and liability 351

B. Interaction with other institutions 351

C. Empirical evidence 353

Ⅱ. Workers' Compensation 353

Ⅲ. Employers' Liability 355

A. Classification 355

B. Elements of liability 357

C. Scope of protection 361

D. Heads and levels of damages 362

E. Administration of claims 363

F. Rights of recourse 363

G. Interaction with social welfare systems and private insurance 364

H. Insurance 364

Ⅳ. Evaluation and Conclusions 365

A. Compensation 365

B. Prevention 366

C. Overall costs 366

D. Interaction between workers' compensation and private law 367

E. Plans for reform 367

F. Overall quality of each system independently and in combination 368

Dominika Dorre-NowakEmployers' Liability and Workers' Compensation: Poland 369

Ⅰ. Introduction 369

A. Basic system of compensation and liability 369

B. Interaction with other institutions 370

C. Empirical evidence 370

Ⅱ. Workers' Compensation 370

A. Scope of cover 370

1. Workers covered 370

2. Spatial, temporal and other limitations 371

3. Effect of the victim's contributory conduct 371

B. Compensation trigger 373

1. Accidents 373

2. Disease (occupational diseases) 379

C. Scope of protection 381

1. Personal injury 381

2. Sexual harassment 381

3. Property damage 381

4. Pure economic loss 381

D. Heads and levels of benefit 381

1. Medical care 381

2. Rehabilitation assistance 383

3. Lost earnings, loss of earning capacity and loss of pension entitlements 383

4. Non-pecuniary losses 383

5. Dependant's benefits 383

6. Comparison with damages in tort 384

7. Lump sum or periodical payments 384

E. Funding systems 384

1. Type of system 384

2. Incentives 386

F. Administration and adjudication of claims 386

1. Organisational framework of workers' compensation institutions 386

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

3. Speed of claims' resolution and administrative costs 387

G. Rights of recourse of workers' compensation institutions 387

H. Interaction with general social welfare provision and private insurance 387

Ⅰ. Interaction with employers' liability 387

Ⅲ. Employers' Liability 388

A. Classification 388

1. Contractor tort? 388

2. General law or special category? 388

B. Elements of liability 388

1. Liability of employers for their own acts and omissions 388

2. Liability of employers for the acts or omissions of their employees and others 389

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

4. Causation 389

5. Effect of the victim's contributory conduct 389

C. Scope of protection 389

1. Personal injury 389

2. Sexual harassment 390

3. Dignitary injuries 391

4. Property damage 391

5. Pure economic loss 392

D. Heads and levels of damages 392

1. Main heads of recoverable damages 392

2. Costs of medical care 392

3. Costs of rehabilitation assistance 393

4. Lost earnings, loss of earning capacity and loss of pension entitlements 393

5. Dependents' benefits 393

6. Non-pecuniary losses 393

7. Form of payment 393

E. Administration of claims 394

1. Courts or specialised tribunals? 394

2. General civil procedure or special procedures 394

3. Reviews and appeals 394

4. Speed of claims' resolution and administrative cost 394

F. Rights of recourse 395

1. Against employees 395

2. Against third parties 395

G. Interaction with social welfare systems and private insurance 395

H. Insurance 395

1. Voluntary or mandatory? 395

2. General liability insurance or special policy? 395

3. Basic principles of employers' liability insurance 396

Ⅳ. Evaluation and Conclusions 396

A. Compensation 396

B. Prevention 396

C. Overall costs 397

D. Interaction between workers' compensation and private law 397

E. Plans for reform 397

F. Overall quality of each system independently and in combination 397

Christian Alunaru and Lucian BojinEmployers' Liability and Workers' Compensation: Romania 399

Ⅰ. Introduction 399

A. Basic system of compensation and liability 399

B. Interaction with other institutions 400

C. Empirical evidence 401

Ⅱ. Workers' Compensation 402

A. Scope of cover 402

1. Spatial limits 403

2. Temporal limitations 404

B. Compensation trigger 404

C. Scope of protection 406

1. Personal injury 406

2. Sexual harassment and injury to one's dignity 407

3. Property damage and pure economic loss 408

D. Heads and levels of benefit 409

1. Medical care 409

2. Rehabilitation assistance 410

3. Lost earnings, loss of earning capacity and loss of pension entitlements 411

4. Expenses refund 412

5. Non-pecuniary losses 413

6. Dependants' benefit 413

7. Comparison with damages in tort 414

8. Form of payment 414

E. Funding systems 414

1. Type of system 414

2. Contributions to the workers' compensation fund 415

3. Risk-rating of contribution 415

F. Administration and adjudication of claims 416

1. Organisational framework of workers compensation institutions 416

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 costs 419

G. Rights of recourse of workers' compensation institutions 419

1. Recourse against the employer 419

2. Recourse against a co-worker or against third parties 420

H. Interaction with general social welfare provisions and private insurance 420

I. Interaction with employers' liability 421

Ⅲ. Employers' Liability 421

A. Classification 421

B. Elements of liability 422

1. Liability of employers for their own acts or omissions 422

2. Liability of employers for the acts or omissions of their employees and others 423

3. Relevance of health and safety legislation in establishing liability 424

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

5. Causation 425

6. Effect of the victim's contributory conduct 426

C. Scope of protection 426

1. Personal injury 427

2. Sexual harassment and injuries to dignity 427

3. Property damage and pure economic loss 428

D. Heads and levels of damages 428

E. Administration of claims 430

F. Rights of recourse 430

G. Interaction with the social welfare system and private insurance 431

H. Insurance 431

Ⅳ. Evaluation and Conclusions 432

A. Compensation 432

B. Prevention 433

C. Overall costs 434

D. Interaction between workers' compensation and private law 434

E. Plans for reform 434

F. Overall quality of each system independently and in combination 435

Michael D Green and Daniel S MurdockEmployers' Liability and Workers' Compensation: United States 437

Ⅰ. Introduction 437

A. Basic system of compensation and liability 437

B. Interaction with other institutions 438

C. Empirical evidence 438

Ⅱ. Worker's Compensation 439

A. Scope of cover 439

B. Compensation trigger 441

1. The 'accident' requirement 441

2. Arising out of and in the course of employment 442

3. Occupational Disease 444

C. Scope of protection 446

1. Sexual Harassment 447

2. Dignitary Injuries 449

3. Property Damage 449

4. Pure Economic Loss 450

D. Heads and levels of benefit 450

1. Medical Care 450

2. Rehabilitation 453

3. Lost Earnings 455

4. Non-Pecuniary Losses 459

5. Dependents' Benefits 459

6. Comparison with Tort 461

7. Lump Sum Payments 462

E. Funding systems 463

F. Administration and adjudication of claims 465

G. Rights of recourse of workers' compensation institutions 467

H. Interaction with general social welfare provision and private insurance 468

Ⅰ. Interaction with employers' liability 470

Ⅲ. Employers' Liability 470

A. Classification 470

B. Elements of liability 471

C. Scope of protection 473

D. Heads and levels of damages 474

E. Administration of claims 474

F. Rights of recourse 475

G. Interaction with social welfare systems and private insurance 475

H. Insurance 476

Ⅳ. Evaluation and Conclusions 476

A. Compensation 477

B. Prevention 478

C. Overall costs 479

D. Interaction between workers' compensation and private law 480

E. Plans for reform 481

F. Overall quality of each system independently and in combination 481

Thomas ThiedeThe European Coordination of Employers' Liability and Workers'Compensation 485

Ⅰ. Introduction 485

Ⅱ. Empirical Evidence 486

Ⅲ. Workers' Compensation 487

A. Limitation to national territory 487

B. European coordination of social security systems 488

C. Sources of law 489

D. Scope of cover 491

E. General rules for determining the legislation applicable 492

1. General application of the law of the country of employment 492

2. Special provisions for determining the legislation applicable 493

3. Pursuit of activities in two or more Member States 494

4. Freedom of choice 495

F. Special provisions for determining the legislation applicable in cases of accidents at work and occupational diseases 496

G. Administration and adjudication of claims 497

H. Rights of recourse of workers' compensation institutions and interaction with employers' liability 498

Ⅳ. Employers' Liability 501

A. Classification 501

B. The Law applicable to contractual duties 505

1. Source of law 505

2. Scope of protection 505

3. General rules for determining the legislation applicable 506

4. Special provisions for individual employment contracts 508

C. The Law applicable to extra-contractual duties 510

1. Source oflaw 510

2. Scope of protection 510

3. General rule 511

4. Escape clause 511

D. Adjudication of claims 512

1. Source of law 512

2. Scope 512

3. Rules for international jurisdiction in relation to contracts of employment 513

E. Rights of recourse and interaction between employers' liability and workers' compensation 515

Ⅴ. Alternatives, Evaluation and Conclusions 515

Ken OliphantThe Changing Landscape of Work Injury Claims: Challenges for Employers' Liability and Workers' Compensation 519

Ⅰ. Introduction 519

A. The Changing Landscape of Work Injury Claims 519

B. The social construction of injury claims 521

C. The compensation and liability framework 523

1. Workers' compensation 523

2. Employers' liability 524

D. Plan 526

Ⅱ. Recognition issues ('naming problems') 526

A. Issues for Workers' Compensation 526

1. An accident preference 526

2. Disease 529

3. Mental illness 533

4. Harassment and discrimination 536

B. Issues for employers' liability 537

1. An accident preference 537

2. Disease 539

3. Mental illness 539

4. Harassment and discrimination 540

Ⅲ. Attribution issues ('blaming problems') 542

A. Issues for employers' liability 542

1. A violation of the required standard of care 543

2. Causation 545

3. Time limits (prescription) 546

4. Insurance 548

5. The risk of insolvency 549

B. Issues for workers' compensation 550

Ⅳ. Challenges for Employers' Liability and Workers' Compensation 552

A. Introduction 552

B. Challenges for Workers' Compensation 553

C. Challenges for Employers' Liability 553

D. Coordination of the two systems 556

Ⅴ. Conclusion 558

Gerhard WagnerNew Perspectives on Employers' Liability - Basic Policy Issues 561

Ⅰ. Introduction 561

Ⅱ. Systems of Workers' Compensation: Basic Features 563

A. Compensation regardless of fault of employer and contributory fault of employee 563

B. Insurance or collectivisation of claims 564

C. Scope of protection 564

D. Limited compensation, simplified assessment 565

E. Resolution of disputes out of court 567

F. Immunity of employers from damages suits 567

Ⅲ. Employers' Liability: Basic Features 568

A. Bases of liability 568

B. Central features of private liability regimes 569

C. Thresholds for establishing civil liability 569

Ⅳ. The Revival of Employers' Liability 570

A. Against the industrial preference 570

B. The promise of social security 572

C. The failure of social security 573

D. Conclusion 576

Ⅴ. Functional Analysis 576

A. Compensation 577

1. Needs-based interpretation of the compensation goal 577

2. Corrective justice interpretation of the compensation goal 578

B. Deterrence 579

1. Strict liability vs fault-based liability 579

2. Insuring against liability 580

3. Conclusion 582

C. Administrative Costs 583

D. Conclusion 586

Ⅵ. Challenges for Workers' Compensation Systems 586

A. The common root of current challenges 586

B. Inroads into the immunity principle 587

1. The expansion of aggravated fault 587

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 employers 591

C. Claims against third parties 593

1. The US experience 593

2. Explanation 594

3. Evaluation 596

Ⅶ. Final Remarks 597

Index 599

Publications 609