Las simbologías que se manifiestan durante la pedida de mano

Since we have evaluated the efficiency of the negligence rule and strict liability and analysed causal requirement from the economic approach, we will now consider administrative costs of liability rules incurred for the trial process. These costs can be

termed involimtary transaction costs incurred by the courts for information and judgment.

To analyse the relationship between liability rules and administrative costs, it is assumed that the level of damages will match actual or average losses. In other words, if expected damages should exceed the victim's expected costs of resorting to an action, he (or his next o f kin) will have incentive to bring an action.

5.3.1 Notion of total administrative costs: When a victim suffers damage and he (or in

case o f his death, his next o f kin entitled to compensation) has decided to make a claim, he (or his next of kin) would have two choices to recover his damages: to settle with the injurer or to go to t r i a l . I n the former case, since the number o f out-of-court settlements and their respective costs are not exactly known in aviation disputes, total transaction costs associated with settlement are not available. We will therefore confine our discussion to administrative costs incurred for the litigated solution. Here, total (litigated) 197. Rizzo & Arnold, ibid, 1427.

198. Shavell, Strict Liability Versus Negligence, 9 J Leg Stud (1980) 1, 2-3, 6-7, 11-12 & 18-19: Rizzo & Arnold, ibid. 1428 n.l39.

199. Robinson, Multiple Causation, at 755 & 769; id. Probabilistic Causation and Compensation for Tortious Risk, 14 J Leg Stud (1985) 779: Hart & Honoré, at 102 & 424; Shavell, 116.

administrative costs are defined to equal combined total costs incurred for all litigated claims. This is equivalent to the total number of litigated claims multiplied by the average costs per litigated claim.

5.3.2 Simple model for least administrative costs; If the parties are risk neutral, total administrative costs to be incurred under liability rules will depend on two factors: the number of claims brought to the courts and average judgment costs per claim including information costs.^oi If the parties are risk averse, an obvious component of total

administrative costs is the expenses incurred to liability i n s u r e r s .^^2 In this simple model,

the efficient outcome calls for discouraging victims' incentive to resort to litigation and reducing courts' administrative costs for determining the injurer's liability.

5.3.3 Administrative costs under the negligence rule and strict liability compared: As to the number o f actions, under the negligence rule the injurer's incentive to bring an action will not be dampened, as long as he believes that he can prove that he satisfied the standard o f care applicable to him. Under strict liability, both the victim's and injurer's incentives for resorting to action will be diluted, for the question would rather be centred on the magnitude o f damages than on the issue of liability itself. And insofar as the amount of damages awarded approximates actual damage, the victims would have little incentives to resort to costly actions. Strict liability therefore enhances the prospect o f prompt and less expensive trial, compared with the prolonged proceedings under the negligence rule.

With regard to judgment costs, information costs are usually high under the negligence rule because o f the questions relating to the identification of negligence applicable to the in j u r e r . 203 Under negligence the court needs to know not only the victim's damages and the injurer's benefits matching different levels of his care,204 but also how the injurer behaved, to determine whether he has met the standard of care. Under strict liability, the court needs to know only the victim's damages. Again, proof of negligence and causal link will incur

considerably high costs under negligence, particularly in joint and multiple injurer c a s e s .2o^

Thus, if there exists uncertainty over causation as in a collision and if the court commits an error in determining each injurer's exact degree of fault, it would tend to give one or more of the joint injurers (or their insurers) to have recourse actions under the negligence rule, thus increasing the number of actions. This is why the economic theory o f litigation

201. Shavell, 264.

202 Shavell, 263; 6.4 below.

203. M Kalian, Causation and Incentives under the Negligence Rule, 10 J Leg Stud (1989) 427, 443; Posner, 441-42.

204. The court will need information about the injurer's benefits at different levels o f care to decide on the standard o f care that con esponds to the efficient outcome.

predicts that litigation and appeal are most likely where the law is uncertain and where damages awarded are b ig g e s t.T h e re fo re , consideration of administrative costs reduction points to strict liability as the preferred rule.

5.3.4 Estimate o f administrative costs of the tort system: Although an estimate of

administrative costs incurred for aviation accident-related litigation is not available, those incurred in the context o f general tort litigation have been made public. The Pearson Commission estimated that administrative expenses of the tort system accounted for 85 percent o f the value of total compensation payments, or about 45 percent o f the total costs of the system including legal costs and the general administrative costs o f the insurers but excluding the costs o f running the c o u r t s . T h e social security scheme, by contrast, operates at a cost o f about 11 percent of the total payments.^®* The Commission, taking note o f different modus operandi and philosophies of the two systems, proposed a balanced approach to personal injury/death compensation for efficient control o f risk and improved protection o f v ic tim s.T o w a rd s this goal, it recommended that the law should be reformed in such a way as to reduce incentives for tort claims and to boost the comparative attraction of social insurance benefits.