Category Archives: Negligence

Israel Gilead, ‘Simplifying the Complexities of Negligence Law – A Joint Academic/Judicial Proposal’

ABSTRACT Over a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning […]

Mark Lunney, ‘Common Law Codification: Lessons and Warnings from Twenty-First Century Australia’

ABSTRACT Codification of tort law is a rare phenomenon in the common law world. However, building on earlier precedents, in the early 2000s, Australian jurisdictions embarked on a project of placing important general principles of negligence law into legislation. This article considers these provisions and argues that they can be considered as an attempt to […]

Lucy Jewel, ‘Does the Reasonable Man Have Obsessive Compulsive Disorder?’

ABSTRACT The reasonable man is an anthropomorphic metaphor for legal reasoning. In this role, he sometimes shows symptoms of mental illness. He exhibits a compulsion to organize, rank, and prevent disorder, a process that can create unjust outcomes. When he is symptomatic, the reasonable man becomes a monster borne out of a fear of disorder. […]

Saul Levmore, ‘Richard Posner, the Decline of the Common Law, and the Negligence Principle’

INTRODUCTION … Part I begins by describing tort law’s choice between a negligence and a strict liability approach. Part II then explores some of Posner’s best-known torts decisions in order to assess his impact and explain why he did not exert even greater influence – despite his willingness to describe facts and real disputes with […]

Hall and Chouinard, ‘Systemic Wrongdoing, Public Authority Liability, and the Explanatory Function of Tort Law: Two Case Studies’

ABSTRACT The narrative character of tort law is fundamental to its content and function. The narratives of tort doctrine identify wrongful/risk-creating conduct, and explain that conduct as being within the control of a defendant in a way that justifies civil liability and compensation. The explanations provided by tort doctrine instruct us how to avoid the […]

Stephen Sugarman, ‘Justice Roger J Traynor, Pragmatism, and the Current California Supreme Court’

ABSTRACT California Supreme Court Justice Roger J Traynor entered the debated between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions,especially in torts. In this article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death […]

‘I Pity The Fool: Ori Herstein’s Defense of the Klutz’

Ori J Herstein, Nobody’s Perfect: Moral Responsibility in Negligence, Canadian Journal of Law and Jurisprudence, volume XXXII, no 1 (February 2019), pp 109-125. The sad story of Menlove, the defendant in the English case Vaughn v Menlove is well known to all first-year torts students. Menlove was born, according to his lawyer, with the ‘misfortune […]

Rebecca Crootof, ‘The Internet of Torts: Expanding Civil Liability Standards to Address Corporate Remote Interference’

ABSTRACT Thanks to the proliferation of internet-connected devices that constitute the ‘Internet of Things’ (‘IoT’), companies can now remotely and automatically alter or deactivate household items. In addition to empowering industry at the expense of individuals, this remote interference can cause property damage and bodily injury when an otherwise operational car, alarm system, or implanted […]

Achas Burin, ‘The positive duty of prevention in the common law and the Convention’

ABSTRACT Twenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand […]

‘Case Comment: Edwards on behalf of the Estate of the late Thomas Arthur Watkins v Hugh James Ford Simey Solicitors [2019] UKSC 54′

“In a unanimous judgment, the Supreme Court has dismissed an appeal by a firm of solicitors in relation to a professional negligence claim concerning alleged under-settlement of a coal miner’s personal injury claim in 2003. The Supreme Court found that, since medical evidence of the nature subsequently obtained in the context of the professional negligence […]