Category Archives: Tort

Gregory Sisk, ‘Recovering the Tort Remedy for Federal Official Wrongdoing’

ABSTRACT As the Supreme Court weakens the Bivens constitutional tort cause of action and federal officers avoid liability for unlawful behavior through qualified immunity, we should recollect the merit of the common-law tort remedy for holding the federal government accountable for official wrongdoing. For more than a century after ratification of the Constitution, federal officers […]

‘Limitation Practice in Clinical Negligence Cases After Azam

“Clinical negligence cases can be complex enough without the added difficulty of delay in bringing proceedings resulting in a limitation defence. When it is raised by Defendants it is currently common for cases to be managed so that limitation will be tried as a preliminary issue, perhaps because of the possibility of a major costs […]

‘“Wrongful Life” Revisited’

“In Evie Toombes v Dr Philip Mitchell [2020] EWHC 3506 the High Court has given renewed consideration to claims for, so called, ‘wrongful life’. Can a disabled person ever claim damages on the basis that they would not have been born but for the defendant’s negligence? The Court answered that question with a resounding ‘yes’ […]

Yotam Kaplan, ‘In Defense of Compensation’

ABSTRACT In recent years, tort victims in the US have been finding it increasingly difficult to secure compensation through the legal system. This decline of compensation is the result of a decades-long campaign by corporate defendants to reshape the litigation landscape in their own favor. The most recent volley in this ongoing battle is an […]

Jonathan Brown, ‘Obligations, consent and contracts in Scots law: re-analysing the basis of medical malpractice liability in light of Montgomery v Lanarkshire Health Board

ABSTRACT Professors MacQueen and Thomson have defined ‘contract’, within Scots law, as denoting ‘an agreement between two or more parties having the capacity to make it, in the form demanded by law, to perform, on one side or both, acts which are not trifling, indeterminate, impossible or illegal’. This definition reflects the fact that Scottish […]

‘Online Harms: Moving towards a system based on responsibility, not liability’

“The regulation of ‘online harms’ in Europe has just taken a big leap. On the same day just before Christmas, the European Commission unveiled the first draft of its proposal to update the responsibilities and liabilities of digital service providers in its ‘Digital Services Act’ (DSA), and the UK announced an update on its Online […]

Rebecca Stone, ‘The Circumstances of Civil Recourse’

ABSTRACT What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions […]

Kumaralingam Amirthalingam, ‘Medical negligence and diagnosis: further inroads into Bolam?’

ABSTRACT The Bolam test allows medical professionals to set the standard of care in medical negligence litigation. There is growing recognition that the medical professional’s duty to the patient is complex and multifaceted and that Bolam may not be appropriate with respect to some aspects of the duty. Significantly, it has been rejected with respect […]

‘How Civil Lawsuits Can Mitigate our Nation’s Crises’

“In nearly every state, as well as in Congress, proposals abound to limit the rights of Americans to use the civil justice system. The fundamental PR message of corporate and other special interests behind these proposals is that the civil justice system is somehow harmful to us as a nation, instead of something to be […]

Bruce Feldthusen, ‘16888782 Ontario Inc v Maple Leaf Foods Inc: The Secret Death of Winnipeg Condominium’

ABSTRACT In 16888782 Ontario Inc v Maple Leaf Foods Inc the SCC changed the law governing recovery for pure economic loss caused by defective products or structures. It appears to 1) require the violation of the plaintiff’s recognized right to personal security or property and 2) even in the case of a violation of a […]