Category Archives: Negligence

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 […]

Robert Rabin, ‘Dov Fox on Reproductive Negligence: A Commentary’

Abstract This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case […]

Wendy Nixson, ‘Has the Right to Breach Patient Confidentiality Created A Common Law Duty to Warn Genetic Relatives?’

Abstract This paper discusses the conflict between a medical practitioner’s duty of care and duty to maintain patient confidentiality, and their statutory right to inform a relative about a possible genetic condition. The statutory right arguably creates a Rogers v Whitaker type duty to provide the same information a patient might require in order to […]

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 […]

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 […]

‘A Bank’s Duty of Care and the Anglo-American/European Divide’

“This summer, Hart Publishing published the book A Bank’s Duty of Care I edited with my colleague Professor Danny Busch from the Radboud University in Nijmegen. In recent years, an increasing number of customers and investors have filed claims against banks, such as for mis-selling financial products, poor financial advice, and insufficient disclosure of and […]

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 […]

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 […]