Insurance and the Law of Obligations, by Rob Merkin and Jenny Steele, 2013, Oxford, UK: Oxford University Press, 406 pp. ISBN: 978‐0‐19‐964574‐9.

• Date: 01 September 2015
• DOI: http://doi.org/10.1111/jori.12099
• Published date: 01 September 2015

BOOK REVIEW

Insurance and the Law of Obligations, by Rob Merkin and Jenny Steele, 2013, Oxford, UK:

Oxford University Press, 406 pp. ISBN: 978-0-19-964574-9.

Reviewer: Brian J. Glenn, University of Connecticut School of Law; brian.

glenn@uconn.edu

When students enter law school, they are taught torts and insurance law as separate

classes. The course on torts always comes first, and the class on insurance law most

likely is not taught by the same professor. It got me wondering how this impacts

American lawyers’ understanding of the relationship between the two. This method

of teaching certainly allows the student to see how insurance responds to the tort

regime. Does it do an equally good job at getting students to understand how the tort

regime responds to the system of insurance?

British legal scholars Rob Merkin and Jenny Steele address this very topic in their new

book on the British system of insurance and the law of obligations, which for the

uninitiated, focuses on the area of civil law concerned with the duties and rights

between individuals or organizations. In British jurisprudence, the dominant

perspective has been to create a high wall between thinking about contractual

disputes and torts (i.e., wrongful acts under civil law leading to a resulting harm) on

the one hand and the use of insurance to pay for the damages on the other.

At first glance, there is something attractive about this approach, since when a harm is

committed, that person or organization causing the harm should be held liable for the

resulting damages, whether or not they are able to pay for them. Guilt, the reasoning goes,

is guilt, and the law should make it clear what has happened and where the fault lies.

Thus, for example, British law prevents the litigating parties from knowing the

amount of insurance coverage available to pay for the damages until the case has been

resolved. The fear is that if the litigants are aware of what insurance is available, they

will structure their case to follow the money, rather than trying to make clear what

harm was caused, as happens in America (see Baker, 2005).

Merkin and Steele seek to dislodge the idea that insurance and harm should be kept

distinct, arguing instead that British law and policymaking should see tort and

obligations as two sides of the same coin. They offer three significant reasons why this

should be the case. First, the lived reality is that thinking in this manner allows

© 2015 The Journal of Risk and Insurance. Vol. 82, No. 3, 749–752 (2015).

DOI: 10.1111/jori.12099

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