Category Archives: Negligence

Myles McLellan, ‘Innocence Compensation: The Success Rate of Actions for Negligent Investigation’

ABSTRACT This research is a qualitative and quantitative analysis on the success rate for plaintiffs who bring actions for negligent investigation against police officers who have wrongly accused them of criminality. This research falls within the broader framework of the success rate of plaintiffs who also seek damages from both police services and crown counsel […]

‘Scope of Duty and Causation: Chester v Afshar revisited’

In these episodes we bring the highlights from the recent 1COR seminar – ‘Scope of Duty and Causation: Chester v Afshar revisited’. We hear from Jonathan Metzer as he gives his interpretation of the case. Then Dominic Ruck Keene discusses the effects of the case. [Law Pod UK, 10 June]

Sandy Steel, ‘Rationalising omissions liability in negligence’

INTRODUCTION … The possible justifications for this general rule have been much examined. This article focuses on two questions that have received considerably less attention. The first is: how, precisely, ought the general rule in the law of negligence to be understood? The traditional formulation of the general rule is in terms of a distinction […]

Ian McElhaney, ‘If a Tree Falls in a Roadway, Is Anyone Liable?: Proposing the Duty of Reasonable Care for Virginia’s Road-Maintaining Entities’

ABSTRACT This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate […]

Gilboa and Pelled, ‘The Costs of Having (Too) Many Choices: Reshaping the Doctrine of Informed Consent’

ABSTRACT This article suggests a reshaping of the doctrine of informed consent to accommodate the potential costs of choices vis-à-vis patients’ well-being. Applying insights from psychology and behavioral economics, it makes four main claims. First, the current doctrine imposes a broad duty of disclosure on physicians toward their patients, based on the premise that patients […]

‘High Court considers causation in clinical negligence’

Pomphrey v Secretary of State for Health and Anor [2019] 4 WLUK 483 – decision not yet on Bailii but available on Lawtel. This case concerned an alleged failure to diagnose compression of nerve roots leading to cauda equina and alleged delay in operating urgently. It raises an important issue in relation to causation and […]

Alon Cohen and Avraham Tabbach, ‘Informational Negligence Law’

ABSTRACT This article offers an analysis of negligence law in an environment with asymmetric information and costly signaling. We consider three possible variations of the negligence doctrine, based on its two elements – the standard of care and damages. We find that accounting for signaling costs affects the social desirability of the negligence rule. In […]

W Kip Viscusi, ‘Medical Malpractice Reform: What Works and What Doesn’t’

ABSTRACT Concerns with medical malpractice liability costs have been a principal factor leading states to adopt a series of tort liability reforms. Medical malpractice premiums have been declining, creating less of a cost-based impetus for additional reforms. The most consistent empirical evidence indicating statistically significant effects of medical malpractice reforms has been for caps on […]

Marel Katsivela, ‘The Notion of Injury in the Tort of Negligence (Common Law) and the Personal Extra-Contractual Liability (Civil Law) in Canada: A Comparative Study’

ABSTRACT This study aims to set out the principles governing the concept of injury in the context of extra-contractual liability resulting from one’s personal acts under Quebec civil law and the common law tort of negligence in Canada. The author seeks to identify similarities and differences that govern this concept and to put forth suggestions […]

Sklar, Taouk, Studdert, Spittal, Paterson and Bismark, ‘Characteristics of Lawyers Who Are Subject to Complaints and Misconduct Findings’

ABSTRACT Regulators of the legal profession are charged with protecting the public by ensuring lawyers are fit to practice law. However, their approach tends to be reactive and case based, focusing on the resolution of individual complaints. Regulators generally do not seek to identify patterns and trends across their broader caseloads and the legal profession […]