Category Archives: Negligence

Peyer and Heywood, ‘Walking on thin ice: the perception of tortious liability rules and the effect on altruistic behaviour’

ABSTRACT Laypeople are often deterred from undertaking altruistic acts, assuming that they face a risk of negligence liability should they injure others while helping. We argue that the laypeople’s interpretation of the law does not correspond with the courts’ interpretation of negligence liability. Reviewing the case law, we demonstrate that the courts treat such cases […]

‘Rethinking Tort Liability for Suicides’

Alex B Long, Abolishing the Suicide Rule, 113 Northwestern University Law Review 767 (2019). Suicide has become an important public-health problem, leading Alex Long to revisit the unduly neglected question of whether tort law should recognize wrongful-death actions for cases in which the defendant’s tortious conduct caused the victim to commit suicide. After describing the […]

Liu and Hyman, ‘Targeting Bad Doctors: Lessons from Indiana, 1975-2015’

ABSTRACT For physicians, quality of care is regulated through the medical malpractice and professional licensing/disciplinary systems. The medical malpractice (med mal) system acts through ex post private litigation; the licensing system acts through ex ante permission to practice (ie, licensure), coupled with ex post disciplinary action against physicians who engage in ‘bad’ behavior. How often […]

‘Legal Theory Lexicon: The Reasonable Person’

“The notion of a ‘reasonable person’ usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the ‘reasonable person’ is used to define the standard of care that triggers liability for unintentional harms. But what makes a ‘reasonable person’ reasonable? The concept of the reasonable person […]

Michaela Merryfield, ‘(You’re) Having My Baby: Surrogacy Fees as a Cost of Future Care Award in Canadian Tort Law’

ABSTRACT In April 2017, the BC Supreme Court released its decision in Wilhelmson v Dumma. After a horrific motor vehicle collision in which she was critically injured, the plaintiff was left unable to bear children. Justice Sharma, in a precedent-setting decision, awarded the plaintiff $100,000 for future surrogacy fees under the head of cost of […]

Tara Van Ho and Carolijn Terwindt, ‘Assessing the Duty of Care for Social Auditors’

ABSTRACT This article analyses the appropriate duty of care under English tort law for social auditors towards third parties at risk of suffering damages from their negligence. After explaining the work of social auditors, the article considers whether the duty of care established for financial auditors is an appropriate one for social auditors. It concludes […]

Bielen, Grajzl and Marneffe, ‘The resolution process and the timing of settlement of medical malpractice claims’

ABSTRACT We draw on uniquely detailed micro-level data from a Belgian professional medical liability insurer to examine how different procedural and legal events that take place during the unfolding of a medical malpractice claim influence the timing of its settlement. Utilizing the competing risks regression framework, we find that settlement hazard is all else equal […]

Jarret Huang, ‘Dryden v Johnson Matthey: The Boundaries of Actionable Damage’

ABSTRACT In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant’s negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was […]

‘Righting Wrongful Birth’

Sofia Yakren, ‘Wrongful Birth’ Claims and the Paradox of Parenting a Child with a Disability, 87 Fordham Law Review 593 (2018). Discussions of limits on women’s reproductive choice these days most often focus on legislative efforts to curtail that choice by narrowly limiting abortion access. Sofia Yakren’s new article reminds us that medical malfeasance in […]

Nadia Sawicki, ‘Defining The Known Risk: Context-Sensitivity In Tort Law Defenses’

ABSTRACT The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally […]