Category Archives: Negligence

AB Wessels, ‘Establishing Legal Certainty in Novel Pure Economic Loss Cases’

INTRODUCTION In a previous article, attention was given to the two major contesting views related to the criterion for wrongfulness in pure economic loss cases – the ‘traditional approach’ and the ‘new approach’. In this article, the focus shifts to a different issue: given that liability for pure economic loss clearly involves the application and […]

Hui Yun Chan, ‘Hospitals’ Liabilities in Times of Pandemic: Recalibrating the Legal Obligation to Provide Personal Protective Equipment to Healthcare Workers’

ABSTRACT The Covid-19 pandemic has precipitated the global race for essential personal protective equipment in delivering critical patient care. This has created a dearth of personal protective equipment availability in some countries, which posed particular harm to frontline healthcare workers’ health and safety, with undesirable consequences to public health. Substantial discussions have been devoted to […]

‘Recognising the legal landscape of informed consent – The GMC’s new guidance on Consent 2020’

“The landscape of informed consent in the doctor-patient relationship was fundamentally re-developed in 2015 when the Supreme Court drove a bulldozer through the Bolam principle replacing it with a new patient focused view designed on ‘materiality’ in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The General Medical Council acted as an intervener in Montgomery […]

Edmund Ursin, ‘Roger Traynor, the Legal Process School, and Enterprise Liability’

ABSTRACT Roger Traynor, who served on the California Supreme Court from 1940 to 1970, the last five years as Chief Justice, was one of America’s great judges. This Article compares Traynor’s view of the lawmaking role of courts with the dominant jurisprudential perspective of mainstream legal scholars at time, that of the legal process school. […]

Rachel Zacharias, ‘“Reproductive Negligence”: A Necessary and Sufficient Remedy?’

Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law: By Dov Fox, Oxford University Press, 2019. In Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law, Dov Fox seeks to remedy instances in which a health care provider or member of the fertility industry has […]

Christopher Brett Jaeger, ‘The Empirical Reasonable Person’

ABSTRACT The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community […]

Donal Nolan, ‘Assumption of Responsibility: Four Questions’

ABSTRACT Although the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a […]

Goudkamp and Nolan, ‘Contributory Negligence and Professional Negligence: An Empirical Perspective’

ABSTRACT Although contributory negligence is usually associated with accident cases, it is frequently pleaded by defendants who have been sued for negligence in the performance of their professional duties, and yet very little is known about the impact of the doctrine in professional negligence litigation. In this chapter, we seek to fill this gap, by […]

Liu and Hyman, ‘The Impact of Medical Malpractice Reforms’

ABSTRACT This article evaluates the effects of medical malpractice reform on claiming, malpractice premiums, physician supply, and defensive medicine. We conclude that damage caps materially reduce claim frequency, payouts per claim, and total payouts. The effects of damage caps on malpractice premiums, physician supply, and defensive medicine are more modest. It is difficult to quantify […]

Marc Ginsberg, ‘Palsgraf Meets Medicine: Physician Beware! – The Unidentified Non-patient and the Duty of Care’

ABSTRACT This paper focuses on the intersection of proximate causation and physician liability. Specifically, the issue is this: should a physician be liable to an unidentified victim of a motor vehicle accident caused by a physician’s patient who was not warned to avoid driving due to a medical condition, prescription medication or procedure which may […]