Category Archives: Tort
Christopher Jaeger, ‘The Hand Formula’s Unequal Inputs’
ABSTRACT Tort cases often hinge on whether the defendant behaved ‘unreasonably’. Tort theorists have long debated what makes behavior unreasonable, with many seeking answers in economic theory or Kantian philosophy. But the question of whether a tort defendant’s conduct was reasonable or unreasonable is typically a question for the jury. And we know very little […]
D’Onfro and Hwang, ‘Tortious Interference Revisited’
ABSTRACT Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square […]
Michael Crawford, ‘The Tort of Nuisance: From the Outside Looking in’
ABSTRACT It is central to the exclusion paradigm of property law that visual intrusions, however unpleasant, cannot amount to actionable wrongs. This proposition is best captured by Lord Camden CJ’s famous dictum that, ‘the eye cannot by the laws of England be guilty of a trespass’. This settled understanding has been upended by the recent […]
Peter Candy, ‘What was the Actio Oneris Aversi?’
ABSTRACT D.19.2.31 contains a reply to a question of law attributed to the late-Republican jurist P Alfenus Varus. Several people had delivered grain to a carrier which was shot into a common pile in the hold of his ship. Subsequently the carrier returned a share of the grain to one of them before the ship […]
John MacLeod, ‘Why Are The Wrongs Wrong? Scots Lawyers’ Approaches To Justifying Liability In Delict’
ABSTRACT Delict has long been recognised as a central category within Scots Private law. However, the reasons for characterising certain conduct as delictual and the justifications for treating it as a distinct taxonomical category have not been explored very thoroughly. These questions matter because matter because they tell us something about how delict relates to […]
Samuel Beswick, ‘The Cause of Action in Ahluwalia v Ahluwalia’
ABSTRACT Appeals in civil litigation are usually brought by the losing party: the party who did not obtain the outcome they sought. In this respect, the appeal to the Supreme Court of Canada in Ahluwalia v Ahluwalia might seem unusual. The appeal is being brought by a plaintiff who ostensibly won her tort claim in […]
‘Recreation and Risk: The Book, The Website, The Links to Liability Waivers’
From time to time, liability waivers and exculpatory agreements have been a topic for the Blog. There was plenty of interest in the subject in connection with the OceanGate disaster in 2023. We also weighed in on the subject in connection with McKamey Manor. Last year, William Gordon Childs published Recreation and Risk, which provides […]
Matthew Leitch, ‘Accidents, Crises, and Events in the Supreme Court: Paul v Royal Wolverhampton NHS Trust’
ABSTRACT In Paul v Royal Wolverhampton NHS Trust, the Supreme Court held that a secondary victim cannot recover damages for psychiatric harm caused by witnessing a primary victim’s medical crisis. This note examines the ratio of the majority’s judgment, that the secondary victim must witness an accident (or its immediate aftermath) to successfully recover damages. […]
Ronen Perry, ‘Harmful Precautions’
INTRODUCTION According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (hence negligently) toward another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent. While law-and-economics theorists have advocated and courts have […]
‘How Tort Law Thwarts the Fight Against Biased Healthcare’
Maytal Gilboa, ‘Biased but Reasonable: Bias Under the Cover of Standard of Care’, 75 Georgia Law Review 489 (2023). Healthcare settings have long been sites where minoritized patients have needed to fight to receive adequate quality of care. The recent debates about physicians not wearing masks in hospitals and clinics to protect immunocompromised and vulnerable […]