Negligence Liability Research Articles

Disability and Occupational Assessment: Objective Diagnosis and Quantitative Impairment Rating

Industrial insurance originated in Europe in the nineteenth century and replaced the old system of negligence liability in the United States between 1910 and 1940. Today psychiatric disability assessments are performed by psychiatrists in the context of Social Security Disability Insurance applications, workers' compensation claims, private disability insurance claims, and fitness for duty evaluations. Expertise in the performance of psychiatric disability evaluations is required, but general psychiatric residency programs provide experience only with treatment evaluations, which differ fundamentally from independent medical evaluations as to role boundaries and the focus of assessment. Psychiatrists offer opinions regarding psychiatric impairments, but administrative or judicial tribunals make the actual determinations of disability. Social Security Disability Insurance evaluations and workers' compensation evaluations are discussed, as is the distinction between diagnoses, which are categorical, and impairment ratings, which are dimensional. Inconsistency in impairment ratings has been problematic in the United States and elsewhere in the workers' compensation arena. A protocol for achieving more consistent impairment ratings is proposed, one that correlates three commonly used global rating scales in a 3 × 5 grid, supplemented by objective psychological test data.

Institutional vicarious liability for physicians: Have we reached the tipping point?

Historically, physicians were solely responsible for patient care, whereas hospitals merely provided equipment and nursing staff. Despite significant changes in the doctor-hospital relationship, Canadian courts maintain that physicians are independent contractors. This article explores whether proposals to tie remuneration to performance, increased board or management involvement in privileging, and shared accountability for quality between physicians, boards, and other providers will prompt the courts to shift to hospital vicarious liability for physician negligence.

British Politics, the Welfare State, and Tort Liability of Public Authorities

There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. Some commentators have suggested that the restriction in liability that took place during the years of her premiership was the result of the impact of Thatcherite ideology on the courts. I consider why such an ideology might be used (and has been used) to justify restriction of liability on public authorities, but argue that such arguments are quite different from those actually found in court decisions at the time. Though founded on ideas that may also be called broadly ‘conservative’, they do not reflect the distrust of state institutions typical in New Right writings, but are rather based on great respect for them, a view that reflects a different strand of conservatism. I demonstrate this attitude from the cases and offer some explanations for its possible adoption by the courts.

Is It Immoral To Punish The Heedless And Clueless? A Comment On Alexander, Ferzan And Morse: Crime And Culpability

This essay, written for a symposium on the book Crime and Culpability: A Theory of Criminal Law, by Larry Alexander, Kim Ferzan and Stephen Morse, responds to the authors’ argument that the criminal law should not punish negligent behavior. The authors argue that criminal culpability should be measured in light of the level of risk the actor himself perceives, and that we are not morally culpable for taking risks of which we are unaware, even if our lack of awareness is objectively unreasonable. They contend that for the negligent actor, the failure to advert to risk is beyond the actor’s control, and beyond the influence of the criminal law, at the critical moment of action. It follows, they argue, that negligent conduct should not be culpable, since punishing negligence would require holding actors responsible when their failure to advert to a risk, however unreasonable, did not entail a conscious choice. The consequences that flow from the authors’ initial descriptive assumptions about awareness and choice are significant. The authors declare objective reasonableness standards for evaluating negligent behavior off-limits since objective standards would lead to punishment for a state of mind the actor did not in fact possess. And because the authors assume that negligent behavior lacks the element of choice and therefore falls below the threshold for culpability, they deem it improperly consequentialist to consider whether punishing negligence would promote the penal goal of communicating and enforcing norms for future conduct. The essay raises concerns about this distinction, questioning whether the criminal law's norm-creation and norm-enforcement functions can be readily distinguished from its role in assessing moral desert. One obvious drawback of doctrines that insulate negligent conduct from criminal liability is that they reward heedless and clueless behavior. The actor who somehow failed to advert to well-know risks is off the hook, while the actor who adverted to such risks and engaged in the risky behavior anyway may be liable. Nevertheless, this essay does not argue that criminal negligence liability is necessarily a matter of good policy. It argues that the authors have taken the policy debate off the table based on contestable assumptions about the nature of consciousness, choice and character. The authors’ normative argument that negligence liability must be rejected as a threshold matter relies heavily on their descriptive assumption that the negligent actor is impervious to influence or correction - an assumption that is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience.

A Study of Tort Liability in Anglo-American Legal System - Focused on Argument of Duty of Care in Negligence Liability -

A Study of Tort Liability in Anglo-American Legal System - Focused on Argument of Duty of Care in Negligence Liability -

The Ethics of Contract Drafting

This Article provides the first comprehensive discussion of the ethical obligations and duties to non-clients of lawyers drafting contracts. It discusses fraudulent representations, errors, fraud, and conscious ambiguity in transcription, as well as iffy and invalid clauses, and argues that the standard for lawyer misconduct under the disciplinary rules should be consistent with the purposes of contract law, one of which is to promote trust between contracting parties. Additionally, the Article discusses lawyer liability for negligence to non-parties in contract drafting and contends that lawyers should be liable to non-parties only when they are third-party beneficiaries to the contract between the lawyer and client for the lawyer‘s services. The Article concludes by arguing for a functional set of ethical rules for lawyers drafting contracts that reflect the increasing emphasis on cooperation, rather than competition, in the contracting process.

A Day at the Beach: A Multidisciplinary Business Law Case Study

This case study, written for use in a multidisciplinary course, exposes students to concepts in business law, economics, and statistics. The case is based upon a hypothetical scenario involving a young woman who, having spent a relaxing day at the beach, heads for home. On the drive home, a flip-flop she is wearing becomes lodged under the gas pedal. In attempting to dislodge the flip-flop, the car she is driving drifts into the lane of oncoming traffic, running head-on into another vehicle. The injured driver of the other vehicle files a lawsuit against the young woman and the manufacturer of the flip-flops. The business law portion of the case raises questions regarding negligence and strict products liability. The economics aspect of the case involves the calculation of lost earnings and present value, and the statistics

Law & Psychiatry: Liability Issues Associated With Referrals to Self-Help Groups

Law & Psychiatry: Liability Issues Associated With Referrals to Self-Help Groups

Too Much Law? Risk, Reasonableness and the Judge as Regulator

The role of the judge as a gatekeeper and guardian of reasonableness as promoted by Alfred Deakin is discussed. Judges are entrusted with the function of assessing the reasonableness of the conduct of defendants and the appropriate scope of liability in negligence.

Negligence, Ignorance and the Demand for Liability Insurance

This paper considers whether lack of information regarding risk exposures can lead to a demand for negligence liability insurance. We find that, under the uniform negligence rule, such as the “reasonable person” standard used to determine negligence in the U.S. and other countries, the value of information is positive and any demand for liability insurance must come from informed individuals. The necessary and sufficient condition is that good risks find it less costly to be negligent and purchase insurance.

Medical Non-Disclosure and Hypothetical Consent

The difference between battery and negligence with regard to the effect of hypothetical consent and its justification by the different degrees to which the non-disclosure of information by the doctor violates the patient's autonomy is discussed. Four situations of medical non-disclosure are examined and show that hypothetical informed consent should continue to exclude liability in negligence, provided that the doctor rather than the patient bears the legal burden of proof as to causation and that causation is determined by asking what the particular claimant, not the reasonable person would have done.

The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines

The traditional strict liability doctrines - liability for abnormally dangerous activities, for wild animals, for abnormally dangerous animals, and for intruding livestock - can largely be explained by a small set of rationales. The Restatement Third Draft offers six principal economic and fairness-based rationales for strict rather than negligence liability: providing the injurer an incentive to optimize (1) the level of care and (2) the level of the activity; and recognizing the justice of requiring the injurer to pay when his activity (3) creates a nonreciprocal risk, (4) affords him a nonreciprocal benefit, (5) is the exclusive cause of the harm, or (6) when the community's sense of fairness supports strict liability. The Draft also rejects (7) loss-spreading as a rationale in this context. With the notable exception of (5), exclusive causation, this is a defensible and plausible set of rationales. However, the actual strict liability doctrines endorsed in the Draft are narrower in scope than the robust logic of these rationales would imply. This mismatch is probably best explained by judicial reluctance to impose strict liability unless the effects of such liability are modest. At the same time, from a wider perspective, the supposed contest between strict liability and negligence approaches is overstated, for each approach contains traces of the other.

Decomposition of Accident Loss and Efficiency of Liability Rules

AbstractThe main purpose of this paper is to show that the set of efficient rules which apportion liability between the victim and the tortfeasor is much larger than is generally believed to be the case. A larger set of efficient rules in general would have the implication of a less sharp conflict between economic efficiency on the one hand and non-efficiency normative criteria on the other. The condition of negligence liability which characterizes efficiency in the context of liability rules has an all-or-none character. Negligence liability requires that if one party is negligent and the other is not then the liability for the entire accident loss must fall on the negligent party. Thus within the framework of standard liability rules efficiency requirements preclude any non-efficiency considerations in situations where one party is negligent and the other is not. In this paper it is shown that accident loss can be decomposed into two parts such that while the apportionment of one part between the parties has bearing on efficiency, the apportionment of the other part has no efficiency implications. The part of accident loss which plays no role in providing appropriate incentives to the parties for taking due care can therefore be apportioned on non-efficiency considerations without in any way compromising the social goal of efficiency. For a systematic analysis of the requirements for efficiency, in this paper a notion more general than that of a liability rule, namely that of a decomposed liability rule, is introduced. A complete characterization of efficient decomposed liability rules is provided in the paper. The most important implication of the theorems of this paper is that by decomposing accident loss into two parts, the scope for non-efficiency considerations can be significantly broadened without sacrificing economic efficiency.

Decomposition of Accident Loss and Efficient Liability Rules

The main purpose of this paper is to show that the set of efficient rules which apportion liability between the victim and the tortfeasor is much larger than is generally believed to be the case. A larger set of efficient rules in general would have the implication of a less sharp conflict between economic efficiency on the one hand and non-efficiency normative criteria, including fairness and restitutive justice, on the other. The condition of negligence liability which characterizes efficiency in the context of liability rules has an all-or-none character. Negligence liability requires that if one party is negligent and the other is not then the liability for the entire accident loss must fall on the negligent party. Thus within the framework of standard liability rules efficiency requirements preclude any non-efficiency considerations in situations where one party is negligent and the other is not. In this paper it is shown that a part of accident loss plays no part in providing appropriate incentives to the parties for taking due care and can therefore be apportioned on non-efficiency considerations without in any way compromising the social goal of efficiency. For a systematic analysis of the requirements for efficiency, in this paper a notion more general than that of a liability rule, namely that of a decomposed liability rule, is introduced. A complete characterization of efficient decomposed liability rules is provided in the paper. The most important implication of the theorems of this paper is that by decomposing accident loss in two parts, the scope for non-efficiency considerations can be significantly broadened without sacrificing economic efficiency.

The Philippine President as Tortfeasor-in-Chief: Establishing Civil Liability for Constitutional Negligence

This article analyzes the liability of the Philippine President for the tort of constitutional negligence in relation to the murders and forced disappearances of leftists, journalists, and other dissidents. It uses the international law doctrine of command responsibility as a form of attribution that may be used, by analogy, to hold the President accountable for a culture of impunity. The article describes the role of the President as the regulator of a human rights-conducive information ecology and argues that massive human rights violations meant to silence dissidents are a source of liability for which a class action suit is an available remedy. Finally, it looks at the concept of presidential immunity from suit from a comparative perspective and argues that the continued application of restrictive immunity rules established during the American colonial era is misplaced considering the universalist design of the present Philippine Constitution and developments in immunity jurisprudence in the United States.

The Philippine President as Tortfeasor-in-Chief: Establishing Civil Liability for Constitutional Negligence

AbstractThis article analyzes the liability of the Philippine President for the tort of constitutional negligence in relation to the murders and forced disappearances of leftists, journalists, and other dissidents. It uses the international law doctrine of command responsibility as a form of attribution that may be used, by analogy, to hold the President accountable for a culture of impunity. The article describes the role of the President as the regulator of a human rights-conducive information ecology and argues that massive human rights violations meant to silence dissidents are a source of liability for which a class action suit is an available remedy. Finally, it looks at the concept of presidential immunity from suit from a comparative perspective and argues that the continued application of restrictive immunity rules established during the American colonial era is misplaced considering the universalist design of the present Philippine Constitution and developments in immunity jurisprudence in the United States.

Medical negligence liability under the consumer protection act: A review of judicial perspective

It is important to know what constitutes medical negligence. A doctor owes certain duties to the patient who consults him for illness. A deficiency in this duty results in negligence. A basic knowledge of how medical negligence is adjudicated in the various judicial courts of India will help a doctor to practice his profession without undue worry about facing litigation for alleged medical negligence.

Socially Optimal Liability Rules for Firms with Natural Monopoly

It has been shown by Polinsky and Shavell that the strict liability rule is socially superior to the negligence liability rule when firms are injurers, strangers are victims, and accidents have a unilateral nature if prefect competition among firms prevails. This article considers the problem of socially efficient liability rules in a market where natural monopoly prevails due to decreasing average cost. We especially consider a quasi-competitive case where average cost pricing is achieved in a naturally monopolized market either through well-organized government regulation or the weak invisible hands of contestability. In contrast to the perfectly competitive economy, the present article shows that in most cases, the negligence regime is socially more desirable than the strict liability regime from the view point of economic efficiency.

Monetary Caps on Damages Due to the Liability of Auditors for Audit Failures in Publicly Listed Companies - Subtitle: A Comparative Legal Analysis between Common Law and Civil Law Regimes in Countries, Which Have Capping Damage Awards of Auditors

Monetary Caps on Damages Due to the Liability of Auditors for Audit Failures in Publicly Listed Companies - Subtitle: A Comparative Legal Analysis between Common Law and Civil Law Regimes in Countries, Which Have Capping Damage Awards of Auditors

The Disintegration of Duty

Throughout the common law world there is no liability for negligence unless the defendant breached a duty of care owed to the plaintiff. But when is such a duty owed? In the foundational judgment of English negligence law in 1932, Lord Atkin asserted that there must be, and is, a general conception of relations giving rise to a duty of care. Lord Atkin thereby gave expression to the view that the law cannot treat the collection of duties as a chaotic miscellany of disparate norms. Rather, the systematic nature of legal norms requires both that all duties of care be thematically unified through the same underlying principle and that each particular duty be internally coherent. More recently, however, courts seem to have given up on the attempt to formulate or appeal to a general conception of duty and have returned to the multiplicity of particular duties that Lord Atkin deplored. This has caused a disintegration of duty in two senses. The entire ensemble of duties is no longer regarded as a coherent set, and each particular duty is fragmented into factors that separately determine the duty's ground and limits. The general conception of the duty of care - its theoretical basis, its structural constituents, its more recent disintegration back into particular duties, and the need to recapture what a general conception of duty implies - is the subject of the present essay. Taking corrective justice as the theoretical notion underlying Lord Atkin's insistence on a general conception of duty, this essay discusses the disintegration of duty in the following steps. It first shows through an analysis of the landmark cases of the twentieth century how duty fits with other negligence concepts (failure to exercise reasonable care, factual causation, and proximate cause) to connect the defendant's act to the plaintiff's injury in a normatively coherent way. It then sets out the internal structure of the duty of care, that is, what its constituents must be if it is to reflect a coherent conception wrongdoing. These constituents make up the general conception of relations giving rise to a duty of care that Lord Atkin sought. The essay then examines the two-stage test for negligence that is used in Canada and other jurisdictions, arguing that this internally fractured test is inadequate for the development of a coherent jurisprudence of negligence. Finally, the essay discusses the meaning and relevance of the much-invoked policy for the determination of the duty of care, concluding that the coherence of its underlying justifications is itself the supreme policy of the law of obligations.