Defendant's Negligence Research Articles

How does South African law handle cases involving baby swapping?

Cases of baby swapping in South Africa (SA) are very rare. In 1996 the first of these cases, Clinton-Parker v Administrator, Transvaal; Dawkins v Administrator, Transvaal, appeared before our courts. The parties in that instance decided to keep the babies who had been erroneously given to them, but the plaintiffs were awarded compensation for the emotional shock and injury they endured as the result of the defendant's negligence. In recent times we had the case of Child Law v NN and NS (GP), where the parties also decided to keep the children who had been erroneously given to them by the hospital staff. These scenarios, while difficult, have had amicable conclusions, with the parents electing not to pursue custody of their natural children. The situation would be more complex if either of the parties were to decide that they want their natural child back. A number of questions are pertinent here, and will guide the discussion in this article. Is it as simple as both of the 'psychological' parents returning the babies to their natural parents? Do the parents have a claim against the hospital staff? Unfortunately there is not a wealth of legal precedent to assist the SA courts in this regard. The article explores the jurisprudence that speaks to baby swapping, in an attempt to provide clarity and assistance in resolving these difficult cases.

Dryden v Johnson Matthey: The Boundaries of Actionable Damage

AbstractIn Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.

Work-Relatedness.

Work-Relatedness.

NEGLIGENCE AND ACCOMMODATION

ABSTRACTWhereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction. This argument resonates with the powerful egalitarian idea of accommodating, rather than overlooking, relevant differences; different treatment is necessary for the duty of reasonable care to give effect to the qualitative difference between the plaintiff's life and limb and the defendant's autonomy. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, or to relate as substantive equals.

Negligence: Taking Others as They Really are

It is quite common to think that any successful account of the standard of reasonable care in negligence law must revolve around the question of what reasonable care is. It is further conventional to suppose that an answer to that question will provide us with the normative materials to address the question of how to assess conformity with the standard's prescriptions (whatever they are). Indeed, tort theorists proceed by presupposing that the manner in which reasonableness is measured is derivative of, and so fully compatible with, the standard’s content and its corresponding value (be that efficiency in the case of lawyer economists or formal equality in the case of corrective justice theorists). However, I shall seek to show that this presupposition is wrong: The manner in which reasonable care is assessed is inconsistent with, and therefore frustrates, either the economic or the corrective justice account of this standard, or, for that matter, any tort theory that fails to take seriously the independent work that the how-to-assess question purports to do. Whereas both economic and corrective justice approaches advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. I shall argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant's negligence with a favorable assessment of plaintiff's negligence, means that the victim gets to fix the terms of the interaction between them. This way of attending to the interests of others resonates well with a powerful notion of respect for persons — that to attend to others respectfully is to engage them on their own terms (including, most importantly, their distinctive judgments and sensibilities). And to the extent that the standard of care captures the moral center of negligence law, the asymmetry in care assessment suggests that the notion of true respect, rather than social welfare or formal equality, is the first virtue of the legal institution of negligence.

Harnessing Adversarial Process: Proof Burdens, Affirmative Defenses, and the Complementarity Principle

This paper studies the evidence production game in adversarial litigation, wherein litigating parties choose how much to spend amassing evidence for their side. The payoff structure of this game is such that one party strategically complements (i.e. mimics her opponent's advances and retreats) while the other strategically substitutes (i.e., does the opposite of her opponent). Which party plays which role depends on how litigation is structured. The question thus arises: should litigation be designed to induce the plaintiff to complement and the defendant to substitute, or vice versa? The paper argues that the answer depends on whether and whose primary activity incentives are being set by the particular evidentiary contest in question. Within each subsidiary evidentiary contest, the target should be induced to complement and her adversary to substitute. In some cases the defendant will be the incentive target, as when the issue is the defendant's negligence or contractual breach. In other cases, the plaintiff will be the target, as when the defendant defends by claiming that the plaintiff has been contributorily negligent or has herself failed to meet a prior contractual obligation. These results resonate with current law. (A companion paper A Primary Activity Approach to Proof Burdens applies these results to the problem of allocating the burden of proof.)

A Primary Activity Approach to Proof Burdens

The question of which party should bear the burden of proof on a given factual issue remains one of the most important and problematic in evidence and procedure. This paper approaches the question from a relatively unstudied perspective, viewing litigation as a device for influencing primary activity behavior rather than as a standalone search for truth. Its main finding is as follows: when a given evidentiary contest concerns the primary activity behavior of one of the parties, placing the burden of proof on the other party maximizes the incentive impact of that contest. Though counterintuitive, the finding accords with a striking regularity in existing law. The adversary of the incentive target typically does bear the burden of proof with regard to the target's primary activity behavior. Thus, in tort, the plaintiff bears the burden on the defendant's negligence, but the defendant typically bears the burden on the defense that the plaintiff was contributorily negligent. And in contract the plaintiff bears the burden on the defendant's nonperformance, while the defendant bears the burden of proof on his defense that the plaintiff failed to perform.

LOSS OF CHANCE: LOST CAUSE OR REMOTE POSSIBILITY?

Gregg v. Scott [2002] EWCA Civ 1471 involved a claimant with non-Hodgkin's lymphoma, which was misdiagnosed by the defendant, who negligently failed to refer the claimant to a specialist. The claimant's condition was correctly diagnosed a year later, by which time his chance of survival had been reduced to 25 per cent.; if he had been treated when he had first visited the defendant, his chance of survival would have been 42 per cent. The Court of Appeal, by a 2-1 majority, upheld the trial judge's holding that because the chance of survival at the time of the defendant's negligence was below 50 per cent., following Hotson v. East Berkshire Health Authority [1987] A.C. 750, the defendant could not be held causally responsible. On appeal, two lines of legal argument on loss of chance as actionable damage were advanced, one emphasising remoteness, and the other causation.

Standard of Care: Nurse-Midwives Held to a Reasonably Prudent Standard— Ali v. Community Health Care Plan, Inc.

Standard of Care: Nurse-Midwives Held to a Reasonably Prudent Standard-- Ali v. Community Health Care Plan, Inc.1-The Supreme Court of Connecticut held that jury instruction defining standard of care as that of a reasonably prudent nurse-midwife engaged in practice of obstetrics and gynecology was supported by evidence and comported with statutory standard of care for healthcare providers.2 On April 16, 1992, plaintiff Rabia Ali underwent amniocentesis at Yale-New Haven Hospital. Approximately three weeks later, Ali noticed a fluid discharge from her vagina, and called defendant Community Health Care. Carol Brekus-Watson, a nurse-midwife employed by Community Health Care, received Ali's call. Ali described fluid discharge and Brekus-Watson determined that Ali's description was inconsistent with release of amniotic fluid, a potentially serious complication during pregnancy. Brekus-Watson recorded substance of conversation in Ali's medical record and recommended that Ali rest and call back in morning if she had further concerns. Twelve days later, Ali experienced vaginal bleeding while out of town and was admitted to Baystate Medical Center in Springfield, Massachusetts. Baystate performed a sonogram that revealed a deficiency in amniotic fluid. The following day, Ali was transferred to Yale-New Haven Hospital, where an ultrasound confirmed loss of amniotic fluid and she was diagnosed with premature rupture of her amniotic membrane. Doctors advised Ali that labor should be induced to prevent fetus from contracting an infection. After consenting to induction of labor, Ali delivered a twenty-one-week-old boy who died shortly after birth. Ali brought a medical malpractice action against Community Health Care, alleging that nurse-midwife's misdiagnosis resulted in premature labor and death of her child due to defendant's negligence.3 Ali argued that Brekus-- Watson should have advised her to consult a physician based on her symptoms. At trial, jury returned a verdict for defendant. Ali argued on appeal that trial court improperly charged jury on standard of care, which effectively established a lower standard of care by which jury would determine negligence. The defendant argued that instructions were proper and in accordance with actual evidence presented in case. The court agreed with defendant and recognized that [a]lthough plaintiff's complaint alleges institutional negligence on part of defendant, plaintiff failed to present any evidence concerning that theory.4 The court determined that Connecticut General Statutes section 52-184c(a) provides that the claimant shall have burden of proving by preponderance of evidence that alleged actions of health care provider represented a breach of prevailing professional standard of care for that health care provider. …

Contributory Negligence

Back to table of contents Previous article Next article LetterFull AccessContributory NegligencePaul S. Appelbaum, M.D.Paul S. AppelbaumSearch for more papers by this author, M.D.Published Online:1 Jun 2000https://doi.org/10.1176/appi.ps.51.6.818AboutSectionsView EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail In Reply: Mr. Meek's letters raises two issues, one semantic and the second more substantive. To take them in turn, did the Illinois Supreme Court's willingness to accept that a patient's suicide might be an act of contributory negligence reflect "a profound misunderstanding of well-established law?" There was a time when the courts held that a plaintiff's negligence could not be considered contributory if it postdated the negligence of the defendant. The plaintiff's behavior would then have had to be considered under such rubrics as "intervening cause" or failure to avert "avoidable consequences." But modern tort law has shunned such distinctions as a distraction from the central issue of who should bear responsibility for an injury. Today, "the plaintiff's negligence may bar all recovery [i.e., be considered contributory], notwithstanding that it is subsequent in point of time to that of the defendant" (1).The more substantive question is whether the action of a suicidal patient should ever be seen as relieving a defendant from liability for his or her own negligence. Traditionally, the law has answered in the affirmative, but only on the basis of a distinction that may be difficult for many mental health professionals to accept. "It is the prevailing view that when insanity prevents one from realizing the nature of one's act or controlling one's conduct, the suicide will be regarded as a direct result [of the defendant's negligence]…for which the defendant will be held liable.… But if one is sane or the suicide is during a lucid interval, when one is in full command of all faculties…the voluntary choice of suicide…[will supersede] the defendant's liability"(1).The dichotomy posed here between a state of "insanity," in which one is presumed to have no knowledge of or control over one's acts, and a sane interval, in which one is in "full command of all faculties," is artificial and fails to recognize that most persons who commit suicide will fall somewhere in between.It is not entirely clear whether this is the distinction on which the Illinois Supreme Court relied in ruling that Dr. Shin could argue to a jury that the patient was contributorily negligent in her death. However, I think Mr. Meek and I—and most courts—would agree on the unfairness of denying a plaintiff recovery of damages, if the psychiatrist's negligence (for example, the failure to diagnose or appropriately treat a depressive disorder) was the direct cause of the mental state that led the patient to decide to take her own life. Nonetheless, as I indicated in my column, there might be genuinely negligent actions taken by the patient, unforeseen and not caused by the psychiatrist, that could constitute contributory negligence (or, if Mr. Meek prefers, a break in the causal chain). Indeed, in Ms. Hobart's case, I think her negligence can most reasonably be understood as comprising her deliberate failure to contact her physicians when she first noticed her deterioration, rather than the suicidal act itself.It seems fair that Dr. Shin should have the right to make this argument to a jury, rather than being precluded from doing so as a matter of law. With this premise, the Illinois Supreme Court agreed.

Heart versus Head: Judge Made Law in Nineteenth-Century America

Versus Head: Judge Made Law in Nineteenth-Century America. By Peter Karsten. (Chapel Hill: University of North Carolina Press, 1997. Pp. xv, 490. Illustrations, maps, tables. $55.00.) If you ask scholars specializing in United States legal history for a graduate reading list, Morton J. Horwitz's Transformation of American Law, 1780-1860 (1977) is bound to turn up. Horwitz argued that antebellum judges created new rules of law to benefit merchant and entrepreneurial classes at expense of labor, poor, and nonentrepreneurial capital. These instrumentalists usurped legislators' role determining public policy from bench. Despite criticisms, Horwitz's book created what Peter Karsten calls the reigning paradigm (3). Now, Karsten offers a mass of evidence to prove it wrong. With a handful of exceptions, nineteenth-century jurists did not create any new rules favoring capitalists, writes Karsten (5). When American jurists applied rules that benefited those who were better off, they were following English precedent, some of it dating back centuries, which exhibited, not a mythical preindustrial paternalism, but a ruthlessness befitting a fiercely hierarchical society. This deference to English precedent was of Head (Part I). When American jurists broke from precedent, their innovations tended to favor poor plaintiffs and penalize corporate defendants. These new rules were of Heart (Part II) and often expressed Christian and republican convictions of its creators. The Jurisprudence of Invisible Hand was itself virtually invisible (299). Karsten's subject is details of legal reasoning and their statistical results. It takes attention to grasp all he says, but as writing on legal doctrine goes, this is among best. Karsten's direct style makes for an intriguing journey through American courtrooms. To make his case, Karsten looked at hundreds of appellate decisions and many treatises and law journal articles. He also generously acknowledges his reliance on scholars of American and English legal history whose work adds hundreds of other decisions to his evidence. Karsten follows seventy rules of law from late eighteenth through early twentieth centuries. One-third of those rules changed, and almost all changes benefited plaintiffs. Although northeastern jurists tended to honor English precedent, those hailing from Midwest, South, and West tended to innovate. Karsten begins Part I, on of Head, noting how English precedents affected American jurists. He then turns to contracts, where he finds little change. For example, he quotes a dairy farmer in 1737 invoking expectation damages, of many supposedly nineteenth-century innovations. In his chapter on torts, Karsten refutes notion that one injured in premodern era had only to prove that defendant's act had caused injury to establish defendant's whereas by mid-nineteenth century ... a plaintiff ... had new obligation of establishing defendant's negligence or fault (81). Virtually strict liability was applied to exploding boilers, defective stagecoaches, and railroad equipment throughout nineteenth century. Although Wex Malone claimed in his widely-known article in Illinois Law Review in 1946 that New York appellate judges who invoked doctrine of contributory negligence were representative, Karsten's survey finds them part of a distinct minority (98). …

The Breast Implant Fiasco

This article, a review essay of Marcia Angell's Science on Trial, begins by discussing the history of breast implant litigation. The implant litigation was not driven by scientific evidence, but by political posturing by self-proclaimed consumer activist Sidney Wolfe, FDA Commissioner David Kessler, and others, sensationalistic media coverage, public opinion inflamed by revelations that implant manufacturers had not followed up on concerns about the potential health effects of silicone, and a contingency fee system that encourages speculative litigation. Once plaintiffs' attorneys won a few big, early victories through superior lawyering, reliance on junk science, and emotional appeals to juries, this attracted investment by other attorneys and created an irrepressible flood of litigation. Next, this article discusses reforms of the American tort system that would reduce attorneys' financial incentives to bring scientifically-dubious claims. First, courts should establish and enforce strict standards for the admissibility of scientific evidence. Second, the contingency fee system should be replaced with the British conditional fee system. Finally, trial procedures should be reformed to increase the probability that fact-finders will arrive at scientifically-correct judgments. Finally, this article considers and rejects recent proposals to allow plaintiffs in toxic tort cases to recover damages for their illnesses without proof of causation if there is proof of defendant's negligence. Instead, the article proposes a legislative solution, akin to whistle-blower statutes and qui tam provisions, that would permit individuals to bring an action in a federal tribunal against a company that is negligently putting the health of the public at risk.

The Breast Implant Fiasco

This article, a review essay of Marcia Angell's Science on Trial, begins by discussing the history of breast implant litigation. The implant litigation was not driven by scientific evidence, but by political posturing by self-proclaimed consumer activist Sidney Wolfe, FDA Commissioner David Kessler, and others, sensationalistic media coverage, public opinion inflamed by revelations that implant manufacturers had not followed up on concerns about the potential health effects of silicone, and a contingency fee system that encourages speculative litigation. Once plaintiffs' attorneys won a few big, early victories through superior lawyering, reliance on junk science, and emotional appeals to juries, this attracted investment by other attorneys and created an irrepressible flood of litigation. Next, this article discusses reforms of the American tort system that would reduce attorneys' financial incentives to bring scientifically-dubious claims. First, courts should establish and enforce strict standards for the admissibility of scientific evidence. Second, the contingency fee system should be replaced with the British conditional fee system. Finally, trial procedures should be reformed to increase the probability that fact-finders will arrive at scientifically-correct judgments. Finally, this article considers and rejects recent proposals to allow plaintiffs in toxic tort cases to recover damages for their illnesses without proof of causation if there is proof of defendant's negligence. Instead, the article proposes a legislative solution, akin to whistle-blower statutes and qui tam provisions, that would permit individuals to bring an action in a federal tribunal against a company that is negligently putting the health of the public at risk.

Identifying and Valuing the Injury in Lost Chance Cases

Any plaintiff seeking to recover in tort must prove that the defendant has breached the duty of care.' Even after the plaintiff has established the defendant's breach of duty, however, issues of causation and damages remain.2 These two issues are frequently vexing, both conceptually and in terms of evidentiary demonstration. For example, if a plaintiff proves that a defendant acted negligently, it still may be unclear whether the plaintiff would have been injured even in the absence of the defendant's negligence. Similarly, in assessing damages, factfinders often find it difficult to attach a monetary value to a plaintiff's nonpecuniary losses such as pain and suffering. So-called loss of cases medical-malpractice cases in which a defendant's negligence injures a plaintiff who has a preexisting medical condition by reducing the plaintiff's likelihood of recovering from the condition pose a particularly difficult challenge to courts seeking to define the scope of and place a value on a defendant's liability.3 According to traditional tort doctrine, in such cases the plaintiff must prove that the decreased likelihood of recovery attributable to the defendant's negligence as opposed to the preexisting condition itself more likely than not directly caused her subsequent failure to recover.4 A person suffering from a preexisting condition with less than a fifty-percent chance of recovery even before diagnosis thus would have no cause of action against a doctor who negligently failed to diagnose the condition, even if the delay brought about by the missed diagnosis caused the person to lose a significant chance of recovering from the condition.5 For example, a person with a thirty-five percent chance of

The Rhetoric of Responsibility

terms. Tuttle v. Atlantic City Railroad Co. 60 and Mauney v. Gulf Refining Co. 6 involve the foreseeability of a plaintiff's frightened response to a defendant's negligence. In Tuttle, one of defendant railroad's cars 60 66 N.J.L. 327, 49 A. 450 (1901). 61 193 Miss. 421, 9 So. 2d 780 (1942). 1990]

Negligent Liability and the Foreseeability Factor: A Critical Issue for School Counselors

Negligent liability suits involving school counselors are not common, but such litigation seems to be increasing. In most of the cases cited, the defendant's alleged negligence emanated from his or her failure to provide reasonable care to individuals who were later injured or killed. Reasonable care is the standard of conduct that a reasonable and prudent person maintains in protecting those to whom he or she owes a duty of care from unreasonable risks. The author emphasizes the role that the element of foreseeability plays in determining the outcome of negligence cases and indicates those areas of responsibility that are most subject to litigation.

Volenti Non Fit Injuria

The recent decision of the House of Lords in Titchener v. British Railways Board (which will be considered below) is a reminder of the uncertainty that strangely still surrounds the defence of consent or volenti nonfit injuria to an action in negligence. It is clear that the defence at least includes the case where there is an agreement, not necessarly constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, i.e., the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so. The principal uncertainty is whether the plaintiff's mere voluntary exposure of himself to a danger already created, or likely to be created, by the defendant's negligence can give rise to the defence of volenti, either on the basis that such conduct of the plaintiff constitutes the requisite agreement to forgo a claim, or on the basis that no such agreement is necessary. This and other problems in regard to the nature and scope of the defence will be considered in this article.

An Economic Theory of Comparative Negligence

ONE of the central problems in the economic analysis of tort law is to determine the proper rules for allocating loss when both parties have engaged in wrongful conduct that has helped bring that loss about. In addressing this problem, most recent scholarship has been directed to the question of how to make an all-or-nothing allocation between plaintiff and defendant, usually in the guise of asking when the contributory negligence defense should bar a cause of action that is itself based on proof of the defendant's negligence. The academic inquiry is in some sense oddly conceived, as the clear direction in the modern cases is away from treating recovery for harm in this all-or-nothing manner. Indeed, the rule that treats contributory negligence as a total bar for recovery presently is operative only in a minority of states covering just over one-quarter of the population, and in precious few jurisdictions abroad. In the meantime, various systems of comparative negligence, which do divide damages between the plaintiff and defendant, have grown enormously in importance, so they now cover almost three-quarters of the American population, much of the rest of the industrialized world, and, in peacetime, virtually all ships at sea.' Notwithstanding its recent surge to dominance,

Proving Negligence in Nursing Practice

acted in a negligent manner. The plaintiff is not necessarily a patient. The plaintiff may be a spouse, child, sibling, or any person who claims that the defendant's negligence caused him loss or injury. To prove professionally negligent conduct on the part of a nurse, it is imperative that four elements be proved. The first element is duty, a legal requirement that the nurse conform to a certain standard of

HEWSON v. DOWNS AND ANOTHER

March 14, 1969 Damages — Personal injuries — Assessment — Pension — Retirement Pension — Pension payable by State — Plaintiff forced to retire early because of defendant's negligence — Whether retirement pension to be taken into account — Loss of increase in pension paid by employers — Whether recoverable.