Category Archives: Personal Injuries

Herring, Fulford, Dunn and Handa, ‘Elbow Room for Best Practice? Montgomery, Patients’ values, and Balanced Decision-Making in Person-Centred Clinical Care’

Abstract The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. A majority of commentators on Montgomery have focused on the implications of the […]

Evelyn Atkinson, ‘Creating the Reasonable Child: Risk, Responsibility, and the Attractive Nuisance Doctrine’

Abstract In common law, trespassers could not sue for injuries. In the early 1870s, however, courts exempted child trespassers injured by industrial machinery from this rule. The development of the hotly contested ‘attractive nuisance’ doctrine illustrates turn-of-the-twentieth-century debates about how to allocate the risk of injury from industrial accidents, which linked responsibility to the capacity […]

Jonathan Sumption, ‘Abolishing Personal Injuries Law – A project’

Introduction “It is now exactly twenty years since Patrick Atiyah published The Damages Lottery, one of the most eloquent polemics ever to be directed against a firmly entrenched principle of law. Professor Atiyah was concerned with the law of negligence generally. But his book has generally been treated as an attack on personal injuries law […]

Vines, Butt and Grant, ‘When Lump Sum Compensation Runs Out: Personal Responsibility or Legal System Failure?’

Abstract In most cases where a person receives lump sum damages for personal injury, it is assumed that the money will be enough to put them back in the position they would have been if the injury had not occurred (indeed, that is the aim of the law of compensation). However, in many cases people […]

Gregory Keating, ‘Response to Fox: Impaired Conditions, Frustrated Expectations, and the Law of Torts’

Introduction Professor Dov Fox’s comprehensive, deeply meditated essay, Reproductive Negligence, argues convincingly that the laws of tort, contract, and property severally and jointly fail to govern the promises and perils of modern reproductive technologies in an acceptable way. Our ‘legal system … treats heedlessly switched sperm, lost embryos, and misdiag­nosed fetuses not as misconduct that […]

Abolishing Personal Injuries Law: A Project: Jonathan Sumption, Inner Temple Hall, London, 16 November 2017

The 2017 PIBA Annual Richard Davies QC Memorial Lecture will be given by the Rt Hon Lord Sumption JSC who will speak on the subject of Abolishing Personal Injuries Law: A Project. The lecture will be accredited for 1 hour of CPD … (more)

Jonathan Montgomery, ‘Patient No Longer? What Next in Healthcare Law?’

Abstract A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients […]

Nadia Sawicki, ‘Choosing Malpractice: A New Narrative for Limiting Physician Liability’

Abstract: Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on […]

Jaime Lindsey, ‘Psychiatric Injury Claims and Pregnancy: RE (a Minor) and Others v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824′

Abstract: RE and others concerned a clinical negligence claim against the Defendant NHS Trust by a baby injured during childbirth, as well by her mother and grandmother for psychiatric injury found to have been caused by those events. This commentary focuses on the claim for psychiatric injury by the mother and grandmother, both of which […]

R Blake Brown, ‘Canada’s First Malpractice Crisis: Medical Negligence in the Late Nineteenth Century’

Abstract: This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and […]