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

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