Category Archives: Negligence

Catherine Sharkey, ‘In Search of the Cheapest Cost Avoider: Another View of the Economic Loss Rule’

Abstract The economic loss rule in tort engages two fundamental theoretical questions: (1) which interests should tort law protect; and, more pointedly, (2) how should we think about claims that arise along the boundary line between tort and contract? This Article advances two claims that aim to clarify this controversial, often misunderstood, doctrine. First, it […]

Abraham and Kendrick, ‘There’s No Such Thing as Affirmative Duty’

Abstract Tort law has long distinguished between misfeasance, which is accompanied by a duty of care, and nonfeasance, which is generally not. Thus a driver has a duty to brake for a pedestrian in the street, but a bystander has no duty to rescue him. Only in rare cases do parties like the bystander have […]

Rob Heywood, ‘“If The Problem Persists, Come Back to See Me …” – An Empirical Study of Clinical Negligence Cases Against General Practitioners’

Abstract The law of negligence, as it applies to General Practitioners (GPs), is underexplored in the literature. There has been no substantial research undertaken that has penetrated deeper into claims that have actually reached court in order to analyse judicial reasoning pertaining to both breach of duty and causation. Given the increased pressures that GPs […]

Samuel Thumma, ‘Mending Wall and Negligence: How a Poem can Inform the Common Law’

Abstract Using selected lines from Robert Frost’s poem Mending Wall, this essay seeks to show how the poem can inform the common law of negligence. Best known for its line ‘good fences make good neighbors’, Mending Wall involves a narrator recounting his relationship with a neighbor, and the neighbor’s calm persistence that a good boundary […]

Naomi Hawkins and Timon Hughes-Davies, ‘Striking a balance: resolving conflicts between the duty of confidentiality and duties to third parties in genetics’

Abstract Genetic information is relevant not only to the patient, but also to their family. Where a patient refuses to share that information with family members, then their legal rights may conflict. This paper focuses on that conflict between the rights of individuals and the rights of third parties. We first examine the nature of […]

Bruce Feldthusen, ‘Please Anns – No More Proximity Soup’

Abstract Under the Anns/Cooper template ‘proximity’ is nominally the key concept the Canadian courts employ when deciding whether to recognize novel duties of care in negligence. This article reviews Supreme Court decisions over the past 40 years. It exposes ‘proximity’ as a shape-shifter and the two-step Anns/Cooper template as a sham. The author argues that […]

James Plunkett, ‘Cavalier v Pope: another victim of the Grenfell Tower fire?

Introduction … even if negligence can be shown, and it can be established that Kensington and Chelsea LBC did fail to act in a way expected of a reasonable landlord, recovery proceedings may still fail due to the continued existence of Cavalier v Pope, the early 20th century case which held that landlords owe no […]

David Body, ‘The legacy of thalidomide’

Introduction This article examines the Thalidomide Litigation, the setting up and work of the Thalidomide Trust and the legacy of Thalidomide over nearly 50 years for personal injury lawyers. The experience of that Litigation, the eventual settlement of claims and the experience of Thalidomiders being supported over the intervening period offers a case study in […]

Bunn and Douglas, ‘Breaking New Ground? Nuisance, Negligence and Pure Economic Loss in Marsh v Baxter

Abstract In Marsh v Baxter the WA Supreme Court resolved a dispute between organic farmers, the Marshes, and their genetically-modified-crop-growing neighbour, Mr Baxter. Causes of action in negligence and nuisance each failed. The court denied that Baxter owed the Marshes a duty to prevent swathes of GM material entering their property, and denied that Baxter […]

Iain Field, ‘Contributory Negligence and the Rule of Avoidable Losses’

Abstract It is often claimed that the rules of contributory negligence apply to unreasonable claimant conduct that occurs prior to or contemporaneously with the defendant’s wrong, whereas the rule of avoidable losses (failure to mitigate) applies to unreasonable claimant conduct that occurs after the defendant’s wrong. Others argue that this distinction is normatively indefensible, since […]