Category Archives: Negligence

Ashley Sundquist, ‘The Economic Loss Doctrine in Alaska and the Design Professional Exception’

Abstract: The economic loss doctrine has prevented countless plaintiffs from recovering their economic losses in tort. However, over the last several decades, numerous courts have found exceptions to this doctrine. Alaska currently provides two important exceptions: the independent duty exception and the design professional exception. These two exceptions as applied provide for inconsistent results which […]

International Journal of the Legal Profession – special number on Legal Malpractice

International Journal of the Legal Profession, Volume 24, Issue 2, July 2017 is now available – special number on Legal Malpractice. € Editorial (Herbert M Kritzer) Lawyers’ professional liability: comparative perspectives (Herbert M Kritzer) Understanding lawyer default in England and Wales: an analysis of insurance and complaints data (Andrew Boon) Making lawyers pay for malpractice […]

Lee Anne Fennell, ‘Lumps and Lapses in Tort Law’

Abstract: Tort law is lumpy. It responds not to the innumerable fine-grained acts of risk creation that each of us performs every day but rather to large, discrete, harmful events – ‘accidents’. And it responds to those events in a binary way, converting unruly facts into an on/off judgment about liability. This operation, characteristic of […]

John Fanning, ‘Mental Capacity as a Concept in Negligence: Against an Insanity Defence’

Abstract: A defendant’s ‘insanity’ will not excuse his or her negligence. According to corrective justice theory, if A injures B, then A should compensate B – that A’s actions may be attributable to a mental illness is therefore immaterial. Some tort scholars argue the law should excuse insane defendants from liability because they lack the […]

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 […]