Category Archives: Negligence

Liao and Radhakrishnan, ‘Auditors’ Liability to Third Parties’

Abstract We examine the near-privity rule that increases the auditor’s legal liability exposure by considering a debtholder who can sue the auditor and recover damages when there is an audit failure. We show that the increase in the auditor’s legal liability induces the auditor to choose more informative and conservative efforts. While the increased informative […]

Ori Herstein, ‘Legal Luck’

Abstract Explaining the notion of ‘legal luck’ and exploring its justification. Focusing on how legal luck relates to ‘moral luck’, legal causation and negligence, and to civil and criminal liability. Herstein, Ori J, Legal Luck (February 2, 2018). Routledge Companion to the Philosophy of Luck, Ian M Church and Robert J Hartman eds (forthcoming).

Just Published: James Plunkett, The Duty of Care in Negligence

This book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of […]

Kevin Tobia, ‘Reasonableness as Normality’

Abstract A classic debate concerns whether reasonableness should be understood descriptively (like averageness) or prescriptively (like welfare maximization). This Article elaborates and defends a third possibility. Reasonableness is a partly descriptive and partly prescriptive ‘hybrid concept’ (like normality). First, the Article investigates how ordinary people judge reasonableness. Reasonableness sits at the core of countless legal […]

Shircore, Douglas and Morwood, ‘Domestic and Family Violence and Police Negligence’

Abstract Domestic and family violence in Australia has received unprecedented attention over the past few years. A number of recent reports and reviews have identified that improved policing is key to enhancing the safety of women and children. In response to these reports, and in recognition that police are often the first to respond to […]

Richard Lewis, ‘Humanity in Tort: Does Personality Affect Personal Injury Litigation?’

Abstract This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid? A rise in the number of claims is […]

Karni Chagal, ‘The Reasonable Algorithm’

Abstract Algorithmic decision-makers dominate many aspects of our lives. Beyond simply performing complex computational tasks, they often replace human discretion and even professional judgement. As sophisticated and accurate as they may be, autonomous algorithms may cause damage. A car accident could involve both human drivers and driverless vehicles. Patients may receive an erroneous diagnosis or […]

Donal Nolan, ‘Deconstructing the Duty of Care’

Abstract In this article, I subject to critical review the orthodoxy that the ‘duty of care’ is an essential component of the common law of negligence. I argue that the duty of care concept is obscuring understanding of negligence law and hindering its rational development. I therefore propose the ‘deconstruction’ of duty, a process whereby […]

Rachael Mulheron, ‘Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis’

Abstract Therapeutic privilege excuses a medical practitioner from having to disclose the material risks associated with medical treatment which the law would otherwise require, because it is reasonably considered that such disclosure would harm the patient’s health. Where successful, therapeutic privilege is a complete defence. However, it has suffered from an almost complete lack of […]

Jane Bambauer, ‘Dr Robot’

Abstract This Essay explores whether health and medical AI should be regulated more like doctors than like devices, and what difference it would make. It concludes that although the FDA is poised to heavily regulate AI with demanding premarket testing standards out of concern for public safety, the risks posed from medical AI should be […]