Table of Cases xiv
Table of Statutes xxxiv
Table of Statutory Instruments xxxviii
Table of EU Legislation xxxix
Table of International Agreements xl
List of Abbreviations xli
Part 1 Essentials
1. Introduction: Insurance in the Law of Obligations 3
1.1 Our Aim 3
1.2 Insurance and Risk 5
1.3 Challenges 6
1.4 Obligations 10
1.5 Structure 13
2. Characterizing Insurance 17
2.1 Introduction: Actuarial or Relational? 17
2.2 In Search of the Nature of Insurance 25
2.3 Insurance and Responsibility 30
2.4 Uncertainty and Speculation 31
2.5 Conclusions 34
3. Insurance Contracts and Insurance Market 37
3.1 Introduction 37
3.2 When is a Contract One of Insurance? 38
3.3 Principles of Insurance Contract Law: an Introduction 44
3.4 The Development of Risks and the Market for Insurance 56
3.5 Liability Insurance and Liability 63
3.6 Does Liability Influence Liability Insurance? 73
3.7 Conclusions 76
4. Regulatory Dimensions 77
4.1 Introduction and Significance 77
4.2 Regulating the Insurance Activity 78
4.3 Protecting Policyholders: the Public Law Approach 87
4.4 Conclusions 93
Part 2 Operation
5. Subrogation 97
5.1 Introduction 97
5.2 The Issues Illustrated 102
5.3 The Basis of Insurer Subrogation 106
5.4 Operation and Limits 115
5.5 Exclusion of Life and Personal Injury Policies 118
5.6 Reflections on Risk Allocation and Loss Distribution 128
5.7 Conclusions 136
6. Loss-Spreading 139
6.1 Introduction 139
6.2 Some Misconceptions About Loss-Spreading 139
6.3 Contribution Between Insurers 141
6.4 Reinsurance 146
6.5 Riot Damages: Market or Community Loss-Bearing? 157
6.6 State and Market 159
7. Allocation of Risk in Voluntary Arrangements 163
7.1 Introduction: Contracting and Insurance 163
7.2 Common Concerns 168
7.3 Insuring Against the Risk of Insolvency 170
7.4 Risk Allocation and Insurance in Contracts 176
7.5 Risk Allocation and Defective Performance 179
7.6 Construction Contracts: a Case Study 194
7.7 Conclusions 201
8. Allocation of Risk and Tort Law 203
8.1 Introduction 203
8.2 Overview: Tort Reasoning and Risk Allocation 212
8.3 'Contractual Matrix' Cases: Tort and Party Risk Structure 217
8.4 Advice 228
8.5 Public Authorities and Risk Allocation 235
8.6 Duties to Employees 247
8.7 Conclusions: Duties, Remedies, and Risks 250
9. Compulsory Liability Insurance 251
9.1 Introduction 251
9.2 Significance and Extent 256
9.3 Compulsory Insurance for Motor Vehicles 261
9.4 Compulsory Employers' Liability Insurance 280
9.5 Conclusions 297
Part 3 Applications
10. Vicarious Liability 301
10.1 Introduction 301
10.2 Nature and Boundaries 304
10.3 Risk Allocation and Loss-Spreading 310
10.4 Loss-Spreading and Insurance in Vicarious Liability 318
10.5 Vicarious Liability and Contractual Structure 323
10.6 Insurance and Vicarious Liability: Conclusions 328
11. Insurance and Illegal Conduct 329
11.1 Introduction 329
11.2 Principles Governing Illegality 331
11.3 Claims Against Policyholders 339
11.4 Claims Against Insurers 347
11.5 Conclusions 360
12. The Asbestos Litigation 363
12.1 The Issues 363
12.2 Establishing Liability in Tort 365
12.3 Insurance Coverage 367
12.4 Claims Against and Between Insurers 376
12.5 Conclusions 381
13. Insurance in Litigation 383
13.1 Insurance and the Shaping of Litigation 383
13.2 Funding Litigation 386
13.3 Defending Litigation by Liability Insurance 393
13.4 Liability Insurance as a Means of Enforcing Judgments 395
13.5 Concluding Thoughts 405
Index 407