Category Archives: Negligence

Allan Beever, ‘Negligence and utility’

Abstract: This article examines the claim that assessment of the standard of care in the law of negligence utilises and must utilise considerations of utility. It argues that this position is mistaken. It also maintains that cases frequently thought to support this view do not do so. The article also examines the justice of appeals […]

Kaitlyn Kelly, ‘Put Privity In The Past: A Modern Approach For Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice’

Abstract: Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney’s alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries’ anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate […]

‘The Case Against National Medical Malpractice Reform’

“Nobody wants medical tort reform more than me. As a surgeon in private practice for over 30 years, I feel the sting of exorbitant malpractice insurance premiums. I hear tales in the hospital doctors’ lounge of frivolous lawsuits, of suits brought by ungrateful and misinformed patients, of doctors torn between feelings of compassion and fear […]

de Costa and Tam, ‘Liability for providing a prognosis in surgical practice’

Abstract: The common law’s development of the doctrine of informed consent has progressively imposed broader obligations on surgeons to provide patients with information about the surgical and alternative treatment choices available. Prognosis is critical because the patient cannot provide informed consent without information about the likely evolution of the physiological or pathological processes involved in […]

Bell and Jocic, ‘Negligence Claims by Subsequent Building Owners: Did the Life of Bryan End Too Soon?’

Abstract: The 2014 High Court of Australia case Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 gave insights into the narrowed field within which a duty of care in negligence to prevent pure economic loss will be found. As recent cases and commentary have recognised, however, the Court’s approach is by no means […]

Sasha Baglay, ‘Who Is My Neighbour? The Duty Of Care In The Immigration Context: A Perspective From Canadian Case Law’

Abstract: This article reviews and analyzes recent Canadian jurisprudence on immigration-related torts, situating it in the context of the contrasting logic of immigration and tort law. Immigration law’s focus on the absolute power of the state to control admission directs courts away from the recognition of the duty of care. In contrast, tort law theory […]

Rutten, Hubeau and Van Houtte, ‘Legal malpractice in Belgium: redress from a client perspective’

Abstract: This article focuses on the mechanisms providing direct redress for a client, victim of legal malpractice, in Belgium. Generally jurisprudence focuses on lawyer discipline (regulatory approach), while the client perspective (end-user approach) is somewhat overlooked. From his perspective, the client does not care if a certain duty is expressly embedded in the Code of […]

‘Whiplash injuries: a tale of two systems’

“In October 2013 the government published its response to a ‘Consultation on arrangements concerning whiplash injuries …’ In the document the then Secretary of State, Chris Grayling, estimated £1.5 to £2bn of savings for the insurance industry that could come from his reforms. He said that insurers had made a commitment at a summit in […]

James Henderson, ‘Learned Hand’s Paradox: An Essay on Custom in Negligence Law’

Abstract: In a well-known tort decision, Judge Learned Hand observes that while legal standards almost always coincide with customary industry standards, strictly speaking custom never controls. This Essay examines the implications of this apparent paradox, concluding that courts must have final say in order to prevent doctrinal feedback loops – situations in which legal doctrine […]

Goudkamp and Nolan, ‘Contributory negligence in the Court of Appeal: an empirical study’

Abstract: In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine’s operation […]