Category Archives: Personal Injuries

‘Occupiers’ Liability and Mental State: Trespassers Who Change Their Minds’

“The High Court recently considered the meaning of ‘trespassers’ and the relevance of a person’s state of mind and intention for the purposes of the Occupiers’ Liability Act 1984 in the case of Ovu v London Underground Ltd [2021] EWHC 2733 (QB). Judgment was handed down on 13 October 2021. On a freezing cold night […]

‘New Judgment: FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (Respondent) [2021] UKSC 45′

“On appeal from: [2020] EWCA Civ 996. The Supreme Court dismissed the appeal. In January 2010 the respondent and their husband were on holiday in Egypt. They stayed at the Four Seasons Hotel Cairo at Nile Plaza. On 3 January 2010, they went on a guided driving tour booked through the hotel. The vehicle they […]

‘The Duty of Care Owed to a Trespasser: A Tragic Case Considered by the Courts’

“In Ovu v London Underground Ltd (duty of care) [2021] EWHC 2733 (QB) Master McCloud considered the duty of care owed to a trespasser. Her judgment starts with a reminder that this is a case about the death of a young man and involves a bereaved family. ‘With most things in the Law, cases have […]

‘Breach of Duty and Hospital Guidelines: Thorley v Sandwell and West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)’

“This case considered the interplay between hospital guidelines and breach of duty in the clinical negligence setting. In summary, the Court found that: The guideline relied upon by the Claimant did not apply to the procedure that he underwent. In any event, even if it did apply: (a) Derogation from the guideline was not negligent […]

Squid Game, Contracts and Consent’

“I’ve been a bit negligent in my blogging duties as I’ve been busy with the start of classes (I’m teaching Torts this semester, hence my use of the word ‘negligent’). So, when my daughter recommended that I watch Squid Game, I scoffed and self-importantly told her that I’m too busy to even post on the […]

Megan Wright, ‘Resuscitating Consent’

ABSTRACT The scholarly focus on autonomy and healthcare decision making largely has been on information about medical treatment, and much less attention has been paid to the issue of consent to medical treatment. Indeed, there is an assumption in the law, bioethics, and clinical literature that if a patient has complete information and understanding about […]

Hidenori Takahashi, ‘Justice Delayed is Justice Denied: Strategic Settlements in Medical Malpractice Lawsuits’

ABSTRACT Delayed justice jeopardizes the function of a just and fair system, disturbing the balance of bargaining powers among litigants in negotiating settlement agreements. We empirically demonstrate that delayed justice brings about heterogeneous responses in the timing of a settlement: the hazard rate of settlement with compensation rises whereas the hazard rate of settlement without […]

Kumaralingam Amirthalingam, ‘The Bolam Standard and Surgical Negligence’

INTRODUCTION The Supreme Court of Canada’s judgment in Armstrong v Ward is remarkable for its brevity and significant for its impact on the application of the standard of care in surgical negligence cases. Dismissing an appeal from the Court of Appeal of Ontario in two sentences, the Supreme Court endorsed the reasoning of the dissenting […]

McGrew, Raskoff and Berkman, ‘When Not to Even Ask: A Defense of Choice-Masking Nudges in Medical Research’

ABSTRACT In this article, we examine the legality and ethics of a controversial but widespread practice in clinical research: choice-masking nudges. A choice-masking nudge (CMN) exists when a research team explicitly obscures a meaningful choice from participants by presenting a default decision as the standard way forward. Even though an easy-to-use opt-out mechanism is available […]

Aoife Finnerty, ‘The Privilege of Information – An Examination of the Defence of Therapeutic Privilege and its Implications for Pregnant Women’

ABSTRACT Though apparently in existence across common law countries, the defence of ‘therapeutic privilege’ receives scant judicial analysis in case law. The extent of its reach is unclear and its underpinning justification is shaky. Often it forms a throwaway remark or poorly explored caveat when the duty of a physician to disclose information is being […]