Category Archives: Negligence

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 […]

Peter Handford, ‘Liability for Work Stress: Koehler Ten Years On’

Abstract This article was published in a special issue of a journal commemorating the life and work of Dr Peter Johnston. It focused on a case drawn to the attention of the author by Dr Johnston – AZ v The Age (No 1) [2013] VSC 335. This case is used as a vehicle for assessing […]

Carol Sanger, ‘The Lopsided Harms of Reproductive Negligence’

Introduction The concept of reproductive negligence is probably not unfamiliar to men and women of child-bearing or child-begetting age. Many a restless hour has been spent worrying about the consequences of a skipped pill, an abandoned condom, or some other form of contraceptive carelessness. The general rule in such circumstances is that the injured party […]

Donal Nolan, ‘Alcock v Chief Constable of South Yorkshire Police (1991)’

Abstract This chapter considers the landmark decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 concerning liability for psychiatric injury, or ‘nervous shock’. Alcock is the single most important English authority on liability for nervous shock, since although its implications for so-called ‘primary victims’ and rescuers may have been diluted […]

Chung and Zink, ‘Hey Watson, Can I Sue You for Malpractice? Examining the Liability of Artificial Intelligence in Medicine’

Abstract Currently, three South Korean medical institutions – Gachon University Gil Medical Center, Pusan National University Hospital and Konyang University Hospital – have implemented IBM’s Watson for Oncology artificial intelligence (AI) system. As IBM touts the Watson for Oncology AI’s to ‘[i]dentify, evaluate and compare treatment options’ by understanding the longitudinal medical record and applying […]

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 […]