About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

54 Calif. L. Rev. 1478 (1966)
The Collateral Source Rule and Loss Allocation in Tort Law

handle is hein.journals/calr54 and id is 1504 raw text is: The Collateral Source Rule and Loss Allocation in Tort Law John G. Fleming* H IGI RANKING among the oddities of American accident law is the so-called collateral source rule which ordains that, in com- puting damages against a tortfeasor, no reduction be allowed on account of benefits received by the plaintiff from other sources, even though they have partially or wholly mitigated his loss. Standing alone this looks perhaps unexceptionable enough. Its sting lies in the corollary that the plaintiff may ordinarily keep both the damages as well as the collateral benefit and thus turn his plight into a bonanza. The problem is a by-product of the affluent society. In olden days an accident victim would rarely have been able to draw to any substan- tial extent on outside sources for meeting his expenses and making up for his loss of earnings during disability. Very occasionally he might have possessed an accident policy, and perhaps a little life insurance. Even then, it makes no undue demand on one's imagination to surmise that, at any rate, prior to the advent of the automobile, most people who stood in the way of torts belonged-as they still largely do-to the lower orders who would rarely have had the providence, even if they had com- manded the means, to pay for insurance. However that may be, the acci- dent victim would ordinarily have had to resign himself to drawing upon his own savings or throwing himself upon charity-which at best was random in incidence and meager in dimension. Other sources there were none: tort law provided the principal, usually the sole, source of compen- sation for injuries suffered. The welfare state has changed all this. Today's victims of misfortune may count on a number of funds to alleviate their distress, foot part or all of their medical expenses and assure at least minimum standards of subsistence. In varying measure, all advanced countries nowadays maintain social security programs for those who suffer disability, whether from illness or accident, including of course tortious accident. The largest segment of injuries by far-that of work injuries-has for so long now been under the peculiar regime of workmen's compensation that most lawyers are prone not to think of it at all as part of personal injury law- all the easier when, as in the United States (though by no means in all countries), compensation has become the exclusive remedy against the * BA., 1939, MA., 1943, D.Phil., 1948, D.C.L., 1959, Oxford University; Professor of Law, University of California, Berkeley. 1478

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most