The vulnerable subject of negligence law

The approach taken by English courts to the duty of care question in negligence has been subject to harsh criticism in recent years. This article examines this fundamental issue in tort law, drawing upon Canadian and Australian jurisprudence by way of comparison. From this analysis, the concept of vulnerability is developed as a productive means of understanding the duty of care. Vulnerability is of increasing interest in legal and political theory and it is of particular relevance to the law of negligence. In addition to aiding doctrinal coherence, vulnerability – with its focus on relationships and care – has the potential to broaden the way in which the subject of tort law is conceived because it challenges dominant assumptions about autonomy as being prior to the relationships on which it is dependent.

The new law of Torts

An essential text for tort law students, this is the first to comprehensively cover recent tort reform legislation as enacted in each Australian jurisdiction, and to deal with the impact these reforms have had on the common law. Both authors from Deakin University, Victoria.

Causation in law and medicine

Causation is an issue that is fundamental in both law and medicine, as well as the interface between the two disciplines. It is vital for the resolution of a great many disputes in court concerning personal injuries, medical negligence, criminal law and coronial issues, as well as in the provision of both diagnoses and treatment in medicine. This book offers a vital analysis of issues such as causation in law and medicine, issues of causal responsibility, agency and harm in criminal law, causation in forensic medicine, scientific and statistical approaches to causation, proof of cause, influence and effect, and causal responsibility in tort law

The new law of torts

The New Law of Torts third edition continues to question whether foundational principles and policies of torts law, reflect the social and moral values of modern Australian society. Living up to its name as The New Law of Torts, this book has been up-dated with the latest legislative and judicial development as well as the recent major cases, reflecting the changing nature of tort law.This is an essential and accessible text as it provides a clear and succinct discussion of the interface between the statutory regime in each jurisdiction and the common law. It comprehensively covers the law as it is applicable to the whole of Australia. The book has clearly delineated parts, sections and topics for each genus of torts (trespass, action on the case, statutory wrongs, etc.), and each species (battery, assault, negligence, nuisance). Headings and sub-headings provide useful breaks in the text, and selected cases are used not only as authorities, but also as illustrations of principle and judicial reasoning.

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Life is full of uncertainties. Legal rules should have a clear intention, motivation and purpose in order to diminish daily uncertainties. However, practice shows that their consequences are complex and hard to predict. For instance, tort law has the general objectives of deterring future negligent behavior and compensating the victims of someone else's negligence. Achieving these goals are particularly difficult in medical malpractice cases. To start with, when patients search for medical care they are typically sick in the first place. In case harm materializes during the treatment, it might be very hard to assess if it was due to substandard medical care or to the patient's poor health conditions. Moreover, the practice of medicine has a positive externality on the society, meaning that the design of legal rules is crucial: for instance, it should not result in physicians avoiding practicing their activity just because they are afraid of being sued even when they acted according to the standard level of care. The empirical literature on medical malpractice has been developing substantially in the past two decades, with the American case being the most studied one. Evidence from civil law tradition countries is more difficult to find. The aim of this thesis is to contribute to the empirical literature on medical malpractice, using two civil law countries as a case-study: Spain and Italy. The goal of this thesis is to investigate, in the first place, some of the consequences of having two separate sub-systems (administrative and civil) coexisting within the same legal system, which is common in civil law tradition countries with a public national health system (such as Spain, France and Portugal). When this holds, different procedures might apply depending on the type of hospital where the injury took place (essentially whether it is a public hospital or a private hospital). Therefore, a patient injured in a public hospital should file a claim in administrative courts while a patient suffering an identical medical accident should file a claim in civil courts. A natural question that the reader might pose is why should both administrative and civil courts decide medical malpractice cases? Moreover, can this specialization of courts influence how judges decide medical malpractice cases? In the past few years, there was a general concern with patient safety, which is currently on the agenda of several national governments. Some initiatives have been taken at the international level, with the aim of preventing harm to patients during treatment and care. A negligently injured patient might present a claim against the health care provider with the aim of being compensated for the economic loss and for pain and suffering. In several European countries, health care is mainly provided by a public national health system, which means that if a patient harmed in a public hospital succeeds in a claim against the hospital, public expenditures increase because the State takes part in the litigation process. This poses a problem in a context of increasing national health expenditures and public debt. In Italy, with the aim of increasing patient safety, some regions implemented a monitoring system on medical malpractice claims. However, if properly implemented, this reform shall also allow for a reduction in medical malpractice insurance costs. This thesis is organized as follows. Chapter 1 provides a review of the empirical literature on medical malpractice, where studies on outcomes and merit of claims, costs and defensive medicine are presented. Chapter 2 presents an empirical analysis of medical malpractice claims arriving to the Spanish Supreme Court. The focus is on reversal rates for civil and administrative decisions. Administrative decisions appealed by the plaintiff have the highest reversal rates. The results show a bias in lower administrative courts, which tend to focus on the State side. We provide a detailed explanation for these results, which can rely on the organization of administrative judges career. Chapter 3 assesses predictors of compensation in medical malpractice cases appealed to the Spanish Supreme Court and investigates the amount of damages attributed to patients. The results show horizontal equity between administrative and civil decisions (controlling for observable case characteristics) and vertical inequity (patients suffering more severe injuries tend to receive higher payouts). In order to execute these analyses, a database of medical malpractice decisions appealed to the Administrative and Civil Chambers of the Spanish Supreme Court from 2006 until 2009 (designated by the Spanish Supreme Court Medical Malpractice Dataset (SSCMMD)) has been created. A description of how the SSCMMD was built and of the Spanish legal system is presented as well. Chapter 4 includes an empirical investigation of the effect of a monitoring system for medical malpractice claims on insurance premiums. In Italy, some regions adopted this policy in different years, while others did not. The study uses data on insurance premiums from Italian public hospitals for the years 2001-2008. This is a significant difference as most of the studies use the insurance company as unit of analysis. Although insurance premiums have risen from 2001 to 2008, the increase was lower for regions adopting a monitoring system for medical claims. Possible implications of this system are also provided. Finally, Chapter 5 discusses the main findings, describes possible future research and concludes.

A Tort for Risk and Endogenous Bankruptcy

Conventional tort law bars victims of exposure to a toxic substance from filing suit until they actually develop symptoms of illness. Practically speaking, this rule often bars recovery due to bankruptcy and causal uncertainty. One solution is to allow victims to file at exposure for expected damages (a tort for risk). The trade-off is that such a rule may trigger a race to file among exposure victims, thereby itself inducing bankruptcy. This paper characterizes the conditions under which such a race will occur in equilibrium and examines the implications for social welfare.

Do Exposure Suits Produce a 'Race to File'? An Economic Analysis of a Tort for Risk

Conventional tort law does not allow victims of exposure to a toxic substance to seek compensation until they develop actual symptoms of illness. This may effectively bar recovery because at the time the illness arises, injurers may be judgment proof. One possible response is to allow a tort for risk that allows victims to seek expected damages at the time of exposure. However, critics charge that this could create a 'race to file' wherein victims rush to file suit to ensure that they will get a share of the injurer's limited assets. We show that such a race may or may not occur in equilibrium, and that when it does occur, not all victims choose to file at exposure if bankruptcy is an inevitable result. If bankruptcy is not inevitable, it is possible that a tort for risk will trigger bankruptcy, although a no-bankruptcy equilibrium always exists and Paretodominates the bankruptcy equilibrium. We examine the consequences of the various tort-for-risk equilibria on the compensation of exposure victims, litigation costs, and injurer care.

Alcohol Server Liability Law Suits Result From Dram Shop Statutes

The country is experiencing a trend of alcohol server liability law suits resulting from dram shop statutes and common law liability, relatively recent developments in the field of tort law. The author, an expert on liquor liability law, explores the meaning of this trend for the hospitality industry.

Responsabilidad civil de la persona mayor incapaz y de sus guardadores por los daños causados a terceros: especial referencia a la responsabilidad del incapaz en el sistema del Common Law

Un número considerable de personas mayores padece alguna enfermedad neurodegenerativa que limita sus facultades intelectivas y volitivas, lo que en la práctica suele traducirse en alteraciones de la personalidad con conservación de consciencia, pérdidas de memoria, desorientación, inquietud, confusión o agresividad. Este deterioro progresivo de capacidad que puede afectar a nuestros mayores no sólo los convierte en fácil objetivo de agresiones sino también en potenciales creadores de riesgos y daños a terceros. Es precisamente la responsabilidad que puede derivarse de tales daños la que será analizada en primer lugar en esta sede, exponiendo el estado de la cuestión tanto en el civil como en el common law. Por otro lado, cuando una persona que tiene sus funciones cognitivas mermadas causa un daño a otro, no sólo se debe analizar la responsabilidad civil del propio agente del daño frente al perjudicado, sino también aquélla en que podría incurrir la persona encargada de su cuidado en caso de haberla. Dicha cuestión ocupará la segunda parte del presente trabajo.

Defamation : is that a fly in my soup?

In a recent case the High Court considered whether a restaurant review was defamatory.

Behaviour disorders and teacher negligence

The purpose of this paper is to examine the legal implications of the continuing rise in the number of school children diagnosed with behaviour disorders. Not only are teachers now subject to a dense grid of legal regulation, they are also increasingly vulnerable to actions in tort. It will be argued here that as more and more children are labelled ‘disordered’, the duty of care become more onerous, and hence harder for teachers to meet. As a consequence, teachers are more likely to face claims of negligence. It is concluded that while the schooling system needs to retain a healthy scepticism about each new pathologising disorder that seeks special status for its sufferers, it also needs to provide greater training and resources for teachers regarding disorder management. It is also concluded that recent changes to negligence law regarding the issue of ‘reasonable foreseeability’ within breach of duty of care, may not be as significant as might have been hoped by the teaching community. Indeed, the elevated standard of care required by the increasing numbers of disordered pupils, places teachers in an ever more difficult legal position.

Setting limits to teacher responsibility

The purpose of this article is to raise some concerns over ongoing changes to the nature and scope of the teaching profession. Teaching is a responsible profession, and teachers have always been charged with the job of turning out the next generation of citizens—educated, healthy in mind, and healthy in body. The question is: how far should this responsibility extend? Just what should schools be responsible for? This article proposes some limits to teacher responsibility.

Too great expectations?

Teachers have always been charged with the task of turning out the next generation of citizens—educated, healthy in mind, and healthy in body. The central question here is: how far should this responsibility extend? Just how much can we reasonably expect teachers to be responsible for? And just what should schools be responsible for? Obviously, teachers ought to be responsible for the fundamentals of learning, but should they be held accountable for what the children eat, or how they choose to behave, or for every single risk, direct or indirect, that could conceivably occur within the school grounds? These are precisely the kinds of expectation that have become part of educational life. Bit by bit, new forms of responsibility are being added to the site of the school and, more specifically, to the professional life of the teacher. The intention here is not necessarily to challenge any of these diverse changes, but rather to express concern about their cumulative effect on the ability of the school to do its primary job effectively.