Category Archives: Negligence

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 […]

Rutten, Hubeau and Van Houtte, ‘Legal malpractice in Belgium: redress from a client perspective’

Abstract: This article focuses on the mechanisms providing direct redress for a client, victim of legal malpractice, in Belgium. Generally jurisprudence focuses on lawyer discipline (regulatory approach), while the client perspective (end-user approach) is somewhat overlooked. From his perspective, the client does not care if a certain duty is expressly embedded in the Code of […]

‘Whiplash injuries: a tale of two systems’

“In October 2013 the government published its response to a ‘Consultation on arrangements concerning whiplash injuries …’ In the document the then Secretary of State, Chris Grayling, estimated £1.5 to £2bn of savings for the insurance industry that could come from his reforms. He said that insurers had made a commitment at a summit in […]

James Henderson, ‘Learned Hand’s Paradox: An Essay on Custom in Negligence Law’

Abstract: In a well-known tort decision, Judge Learned Hand observes that while legal standards almost always coincide with customary industry standards, strictly speaking custom never controls. This Essay examines the implications of this apparent paradox, concluding that courts must have final say in order to prevent doctrinal feedback loops – situations in which legal doctrine […]

Goudkamp and Nolan, ‘Contributory negligence in the Court of Appeal: an empirical study’

Abstract: In this paper we report the results of an empirical study of 112 appellate decisions on the contributory negligence doctrine in England and Wales between 2000 and 2015. It is the first study of its kind in any common law jurisdiction, and builds on earlier research in which we looked at the doctrine’s operation […]

‘What Is It Like to Think Like a Pre-Modern?’

Kenneth S Abraham and G Edward White, The Transformation of the Civil Trial and the Emergence of American Tort Law, Arizona Law Review (forthcoming), available at SSRN. There are a number of ways to tell the story of the change in American tort law that occurred in the nineteenth and twentieth centuries. Some, like John […]

Marc Ginsberg, ‘Does Evidence of Common Insurance Demonstrate Relevant Expert Witness Bias in Medical Negligence Litigation’

Abstract: Does ‘common insurance’ shared by the defendant-physician and the medical expert-witness establish an expert bias? In the past ten to fifteen years, the common insurance question has received attention by the state courts. It has been well understood that ‘evidence’ of the presence or absence of liability insurance is simply inadmissible to prove fault […]

‘Still up in the air – is it a Bolam case or a Penney case?’

“In 2012 Mr Muller was diagnosed with a malignant melanoma on the sole of his left foot. The cancer had spread, despite a quick biopsy, and all secondary metastases were then removed. Fortunately, Mr Muller proceeded to receive positive six-month scans, is now clear of cancer and has maintained a normal life expectancy. All perfectly […]

W Nicholson Price II, ‘Medical Malpractice and Black-Box Medicine’

Abstract: The explosive proliferation of health data has combined with the rapid development of machine-learning algorithms to enable a new form of medicine: black-box medicine. In this phenomenon, algorithms troll through tremendous databases of health data to find patterns that can be used to guide care, whether by predicting unknown patient risks, selecting the right […]

‘Self-Driving Cars: The Reasonable Computer’

“At Singularity Hub, Ryan Abbott, professor of law and medicine, discusses coming changes in technology and how they might affect tort law: ‘Abbott appears to be the first to suggest in a soon-to-be-published paper that tort law treat AI machines like people when it comes to liability issues. And, perhaps more radically, he suggests people […]