Category Archives: Personal Injuries

Tsachi Keren-Paz, ‘No-Fault (Strict) Liability for Injuries From Innovative Treatments: Fairness or Also Efficiency’

Abstract Innovative treatments (ITs) have a distinct SIROT pattern: they often show, and are expected to show, significantly improved results over time. Of the four IT categories discussed, two stand out: SIROT treatments which are currently not in the patient’s best interest (BI) but will become superior treatment over time (category 3), and treatments which […]

Mary-Elizabeth Tumelty, ‘Calculating the Cost of Medical Negligence Litigation’

Introduction Medical negligence litigation is frequently criticised due to concerns that the traditional adversarial process is financially burdensome. During the height of the ‘medical malpractice crisis’ in the United States in the 1990s, Bovbjerg observed, ‘folklore, anecdote, and stereotypes predominate the tort reform debate … because solid information has been scarce for many years’. Although […]

John Goldberg, ‘You Can’t Spell “America” Without C A R’

Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest Law Review 293 (2018). For the past century, the car accident has served as the paradigmatic (über-?) tort. What does this tell us about tort law’s past, present, and future? Nora Freeman Engstrom’s elegant and informative When Cars Crash offers some highly […]

Tsachi Keren-Paz, ‘Liability for Consequences, Duty of Care and the Limited Relevance of Specific Reliance: New Insights on Bhamra v Dubb

Abstract The purpose of this article is to examine two issues central to the tort of negligence: the role of reliance in establishing a duty of care; and the relationship between the harm-within-risk rule and the rule excluding liability for coincidental harm as tests for legal causation. I will use the unusual facts of Bhamra […]

Simon Connell, ‘Justice for Victims of Injury: The Influence of New Zealand’s Accident Compensation Scheme on the Civil and Criminal Law’

Abstract New Zealand’s accident compensation scheme replaced compensatory damages for personal injury with a no-fault redistributive scheme. The central thesis of this article is that the scheme, and its influence on the civil and criminal law in New Zealand, can be better understood in terms of the interplay between corrective, retributive and distributive justice. The […]

Freckelton and Popa, “‘Recognisable Psychiatric Injury’ and Tortious Compensability for Pure Mental Harm Claims in Negligence: Saadati v Moorhead [2017] 1 SCR 543 (McLachlin CJ and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ)”

Abstract Since at least 1970, one of the constraints upon compensability for pure mental harm at common law has been that a plaintiff must have suffered not just adverse psychological consequences from negligence but a ‘recognisable psychiatric illness’. In a powerful unanimous decision, the Supreme Court of Canada in Saadati v Moorhead [2017] 1 SCR […]

Stephen Irwin, ‘Can compensation bring satisfaction? What do damages for personal injury represent?’

“There are two stimuli for this talk. Firstly, it is good, from time to time, to lift our heads above the detail, the practical administration of the law, and ask ourselves in a broader sense what we are about. The second stimulus came as I listened to a section of this lecture given last year […]

Pita Roycroft, ‘Wilkinson v Downton after Rhodes and its Future Viability in New Zealand’

Abstract This article analyses the tort in Wilkinson v Downton, commonly referred to as intentional infliction of emotional distress, in light of the United Kingdom Supreme Court’s decision in Rhodes v OPO. After considering the three base elements of the Rhodes Court’s newly reformulated tort, and giving a brief introduction to the New Zealand equivalent, […]

Civil Liability Bill – ‘a technical argument between the insurance lobbyists and the legal services lobbyists’

“This title was one MP’s description of the Bill’s provisions (the whiplash reforms, in the main) during yesterday’s long and highly polarised debates on report and third reading of the Bill. The Bill was passed without further amendment (save for a minor linguistic tweak by the Government) by a healthy Government majority of 56. It […]

Rob Heywood, ‘“If The Problem Persists, Come Back to See Me …” – An Empirical Study of Clinical Negligence Cases Against General Practitioners’

Abstract The law of negligence, as it applies to General Practitioners (GPs), is underexplored in the literature. There has been no substantial research undertaken that has penetrated deeper into claims that have actually reached court in order to analyse judicial reasoning pertaining to both breach of duty and causation. Given the increased pressures that GPs […]