Negligence Actions Research Articles

Applying the Sudden Emergency Doctrine to Autonomous Vehicles: The Case of the Speeding Truck and the Polar Bear

In this hypothetical accident, the driverless car sees a “polar bear” – the “polar bear” in the real instance is that speeding truck traveling through a red light that the driverless car ought to have sensed and avoided – and does not know how to handle the particular input – which has not been previously programmed. Within the traditional tort paradigm, liability extends to those foreseeable outcomes from tortious behavior or operation. However, liability for secondary outcomes arises in those situations where the vehicle ought to have sensed the data in the outlying immediate area, but failed to do so (i.e., no matter how fast the car swerved, absent any additional negligence, some negligent act put into motion the entire sequence).In such situations, the driverless car programmer would be responsible for secondary outcomes not foreseen or realized prior to release of the product into society. In such situations, the standard for foreseeability would no longer appropriately be limited to the “reasonable person” for the simple reason that the driverless car is not operated by the “reasonable person” but by the “super-person.” Given the realities of human limitation, driverless cars are marketed to pick up the slack where humans err. In such a case, the standard of foreseeability is not that which the reasonable driver or person could fathom, but that which the programmer of the reasonable super-person or super-driver would have determined through the numerous iterations necessary prior to releasing the autonomous vehicle to market.The sudden emergency doctrine (SED) operates in tort law to relieve from liability actors who the law determines are incapable of making a decision at the time of some otherwise negligent act. The crux of the doctrine is that liability is only quashed in unique situations, like lightning striking, typhoons shutting down traffic signals, and a platypus crossing the road. Other examples include a terrorist attack or a passenger experiencing a cardiac arrest.To date, humans lack the capacity to deliberate or process information in extreme circumstances – again, like lightning striking the road ahead – to the extent necessary for rational decision making by human actors. However, unlike human drivers, autonomous vehicles (AVs), or driverless cars, theoretically have the capacity to anticipate all known obstacles that have been pre-programmed and then make decisions based on this programming, even during emergencies. In the case of driverless cars, the decisions programmed generally anticipate all known obstacles.Still, in the narrow set of emergency circumstances proposed in the Introduction, it is conceivable that driverless cars might lack pre-programmed directions to act. After experiencing lightning strikes, massive system failures, typhoons, or speeding platypuses crossing the road, the question begged is whether the driverless car’s action would receive the same treatment by courts as would a human actor under SED. This paper endeavors to answer that question and then to explain why SED ought to apply to AVs as a policy matter.

Pursuing Justice in Haiti's Cholera Epidemic.

In 2010, the nation of Haiti was leveled by a shattering earthquake that killed thousands and devastated its already fragile infrastructure. During relief efforts to aid Haiti's suffering population, the United Nations sent troops to Haiti to assist the rebuilding of country's most basic services. But those troops unknowingly carried with them the bacteria that cause cholera, and through the UN's negligent actions, it triggered a horrifying cholera epidemic that continues to harm the Haitian people. Those injured by the cholera epidemic have sought relief in the US federal court system to obtain justice for those killed or sickened by the cholera outbreak. The UN has declared legal immunity for causing the epidemic, yet the litigation on this matter is ongoing.

Egg-shell skulls or institutional negligence? The liability of World Rugby for incidents of concussion suffered by professional players in England and Ireland

The number of incidents of concussion in professional rugby union is increasing steadily. In the English Rugby Premiership, concussion was the most frequent injury suffered by professional players in each of the last 3 seasons. Further, there is developing evidence of a link between suffering repeated concussions and chronic traumatic encephalopathy, a degenerative brain disease. World Rugby’s principal response to the growing problem of concussion in rugby has been through the introduction of the Pitch Side Concussion Assessment and the Return to Play protocols. Few amendments have been made to the playing rules of the sport with the express intention of reducing the frequency with which concussions occur. The article explores whether World Rugby could be found to owe professional rugby players a duty of care under the laws of negligence in England and Ireland. The article then goes on to examine if World Rugby could be found to have acted negligently in its response to the issue of concussion, through the adoption of its concussion management rules and its failure to amend the playing rules of the sport in an attempt to prevent concussions from occurring. Following this, the article analyses the difficulty which a potential plaintiff would face in establishing causation in a negligence action against World Rugby. The article concludes with suggested changes which World Rugby could implement to lessen the possibility of a finding that it has acted negligently in relation to players’ safety.

Beyond the ‘Tomlinson Trap’: Analysing the Effectiveness of Section 1 of the Compensation Act 2006

One of the intentions underpinning section 1 of the Compensation Act 2006 was to provide reassurance to individual volunteers, and voluntary organisations, involved in what the provision called ‘desirable activities’ and including sport. The perception was that such volunteers, motivated by an apprehension about their increased vulnerability to negligence liability, and as driven by a fear of a wider societal compensation culture, were engaging excessively in risk-averse behaviour to the detriment of such socially desirable activities. Academic commentary on section 1 of the Compensation Act 2006 has largely regarded the provision as unnecessary and doing little more than restating existing common law practice. This article argues otherwise and, on critically reviewing the emerging jurisprudence, posits the alternative view that section 1, in practice, affords an enhanced level of protection and safeguarding for individuals undertaking functions in connection with a desirable activity. Nonetheless, the occasionally idiosyncratic judicial interpretation given to term ‘desirable activity’, potentially compounded by recent enactment of the Social Action, Responsibility and Heroism Act 2015, remains problematic. Two points of interest will be used to inform this debate. First, an analysis of the then House of Lords’ decision in Tomlinson and its celebrated ‘balancing exercise’ when assessing reasonableness in the context of negligence liability. Second, a fuller analysis of the application of section 1 in the specific context of negligence actions relating to the coaching of sport where it is argued that the, albeit limited, jurisprudence might support the practical utility of a heightened evidential threshold of gross negligence.

Medical malpractice crisis deepens: New approach

To the Editor: The medical indemnity insurance crisis has entered a new phase with one hospital group informing its doctors that they will be barred from use of its facilities after February 2016 if they do not have an indemnity policy with at least ZAR30 million cover. This attitude is likely to be adopted by the other hospital groups, who are all under pressure to ensure that they are adequately insured for any negligent act that may involve them or their staff jointly with the doctor against whom a claim is being raised. According to one source, the minimum excess that a hospital has to pay per insurable event is ZAR10 million. This requirement will, by some margin, trump the hospital income earned through admissions by an individual practitioner. This means that no individual practitioner can expect leniency from the hospital based solely on their income generating capacity. Add to this new requirement the premium of ZAR650 000 the Medical Protection Society (MPS) has commenced charging its obstetric customers for its occurrence-based cover this year (an increase of ZAR200 000 since 2015), and it becomes easy to appreciate the enormity of the crisis.

Predictive technology and natural hazards: risk for Australian planning authorities?

Purpose The purpose of this paper is to examine whether the improvements in technology that enhance community understanding of the frequency and severity of natural hazards also increased the risk of potential liability of planning authorities in negligence. In Australia, the National Strategy imposes a resilience-based approach to disaster management and stresses that responsible land-use planning can reduce or prevent the impact of natural hazards upon communities. Design/methodology/approach This paper analyses how the principles of negligence allocate responsibility for loss suffered by a landowner in a hazard-prone area between the landowner and local government. Findings The analysis in this paper concludes that despite being able to establish a causal link between the loss suffered by a landowner and the approval of a local authority to build in a hazard-prone area, it would be in the rarest of circumstances that a negligence action may be proven. Research limitations/implications The focus of this paper is on planning policies and land development, not on the negligent provision of advice or information by the local authority. Practical implications This paper identifies the issues a landowner may face when seeking compensation from a local authority for loss suffered because of the occurrence of a natural hazard known or predicted to be possible in the area. Originality/value The paper establishes that as risk managers, local authorities must place reliance upon scientific modelling and predictive technology when determining planning processes to fulfil their responsibilities under the National Strategy and to limit any possible liability in negligence.

Noise thermometry at ultra-low temperatures.

The options for primary thermometry at ultra-low temperatures are rather limited. In practice, most laboratories are using (195)Pt NMR thermometers in the microkelvin range. In recent years, current sensing direct current superconducting quantum interference devices (DC-SQUIDs) have enabled the use of noise thermometry in this temperature range. Such devices have also demonstrated the potential for primary thermometry. One major advantage of noise thermometry is the fact that no driving current is needed to operate the device and thus the heat dissipation within the thermometer can be reduced to a minimum. Ultimately, the intrinsic power dissipation is given by the negligible back action of the readout SQUID. For thermometry in low-temperature experiments, current noise thermometers and magnetic flux fluctuation thermometers have proved to be most suitable. To make use of such thermometers at ultra-low temperatures, we have developed a cross-correlation technique that reduces the amplifier noise contribution to a negligible value. For this, the magnetic flux fluctuations caused by the Brownian motion of the electrons in our noise source are measured inductively by two DC-SQUID magnetometers simultaneously and the signals from these two channels are cross-correlated. Experimentally, we have characterized a thermometer made of a cold-worked high-purity copper cylinder with a diameter of 5 mm and a length of 20 mm for temperatures between 42 μK and 0.8 K. For a given temperature, a measuring time below 1 min is sufficient to reach a precision of better than 1%. The extremely low power dissipation in the thermometer allows continuous operation without heating effects.

An economic analysis of waiver of tort in negligence actions

The legal status, scope, and policy implications of the waiver of tort doctrine have been a prominent, controversial, and unresolved feature of many recent class action proceedings in Canada, especially in products liability cases, where plaintiffs have sought to claim disgorgement of profits or revenues as an alternative to proof of damage or injury. The doctrine in recent years has been invoked frequently by plaintiffs in negligence class actions, though its legal status in such a context remains uncertain, as it has not been judicially decided. The article assesses the waiver of tort doctrine from an economic perspective. It argues that decoupling remedies from actual damages in negligence cases generally, or in products liability cases in particular, is not well founded from an economic perspective. Theory and evidence suggests that the deterrence and insurance aspects of negligence law are best achieved by linking remedies to losses actually suffered. In many contexts, disgorgement of gains from activities entailing negligent conduct may induce socially wasteful forms of over-deterrence. Economic analysis does not support the waiver of tort doctrine.

English

In these modern days of increased awareness of knowledge at the tip of finger by a click, there is increasing litigation on doctors and widening of gap between patient and doctor relationships. Also the tendency of public to fall onto hype and hungama created by mass media of such news of such events fashioned every time to make it attractive and more boisterous to increase their ratings and popularity, without minding the affects they would create among the general public and the doctor’s community. And in many instances the general public demanding an early quick and complete remedy to all medical ailments irrespective of stage of disease are posing dangerous situation to patient doctor’s relationships leading to rapidly raising of number of medical negligence cases against the doctor. In present scenario doctor cannot be sure enough that they will never be threatened with an action for negligence, particularly by urbanities mainly amongst educated and affluent classes, as they are health conscious and aware of defects in medical managements. Patients are ready to sue even though they had received excellent care and needed treatment to do best for patient in a good faith and belief.

Civil Litigation in the UK: сontemporary issues to ensure evidential reliability

The system for assessing appropriate damages for individuals who have suffered a personal injury, caused by another person or persons is well established in the UK. A claimant, for example, who has been in a road accident, work accident, medical accident or negligent action can make a claim for his/her physical and psychological injuries, time off work and future disability, provided it is proven that another person(s) is responsible. The system involves obtaining, medical-legal evidence on the diagnosis, causation, treatment and prognosis of any injuries, physical or psychological. One key aspect of this covers the crucial issue of evidential reliability. This paper explains the key questions facing lawyers and experts alike in the UK; fundamental postulates or beliefs about evidence; ways to improve reliability; the relevance of pre-event history and improving evidential reliability via Part 35 questioning. The UK, along with the USA, has the most advanced and developed system of personal injury litigation process.

The suspended sentence in French Criminal Law

From the ancient times until today, criminal law has provided different criminal sanctions as measures of social control. These coercive measures are imposed on the criminal offender by the competent court and aimed at limitting the offender's rights and freedoms or depriving the offender of certain rights and freedoms. These sanctions are applied to the natural or legal persons who violate the norms of the legal order and injure or endanger other legal goods that enjoy legal protection. In order to effectively protect social values, criminal legislations in all countries predict a number of criminal sanctions. These are: 1) imprisonment, 2) precautions, 3) safety measures, 4) penalties for juveniles, and 5) sanctions for legal persons. Apart and instead of punishment, warning measures have a significant role in the jurisprudence. Since they emerged in the early 20th century in the system of criminal sanctions, there has been an increase in their application to criminal offenders, especially when it comes to first-time offenders who committed a negligent or accidental criminal act. Warnings are applied in case of crimes that do not have serious consequences, and whose perpetrators are not hardened and incorrigible criminals. All contemporary criminal legislations (including the French legilation) provide a warning measure of suspended sentence. Suspended sentence is a conditional stay of execution of sentence of imprisonment for a specified time, provided that the convicted person does not commit another criminal offense and fulfills other obligations. This sanction applies if the following two conditions are fulfilled: a) forma! -which is attached to the sentence of imprisonment; and b) material -which is the court assessment that the application of this sanction is justified and necessary in a particular case. In many modern criminal legislations, there are two different types of suspended (conditional) sentence: 1) ordinary (classical) suspended sentence, and 2) a suspended sentence with supervision. If the convicted person fails to comply with a court order, the law provides for the mandatory or optional revocation of the suspended sentence.

Identification of Subjects and Recognition of Negligent Acts in Cases of Concurrent Criminal Negligence

Identification of Subjects and Recognition of Negligent Acts in Cases of Concurrent Criminal Negligence

A Study of Unnatural death at MVJ Medical College and Research Hospital

Unnatural deaths includes death caused due to criminal intent of a person behind or result of negligent act or planned omission of some person and also those where there is no illegal intent at all but death followed due to some accident or mishap. Unnatural deaths may imitate the law and order situation in a particular area of authority. This study is concerned with study pattern of unnatural deaths in MVJ medical college and research hospital for a period of two years. We found 236(87%) cases of unnatural deaths by analyzing 273 cases of deaths. Study revealed 99 cases of unnatural deaths in 2014 and 137 cases in 2015 with 14% increment. Deaths were more common in males 152 (64.4%) than in females 84 (35.6%). Majority of unnatural deaths occurred among the age group of 31–40 years. The frequency patterns of unnatural deaths are 67% RTAs, 7% homicide and 26% suicide. Poisoning is preferred method used to commit suicide with 36 (58%) out of 61 suicidal cases, followed by 14 (24%) of hanging, 5 (9%) of burns, 3 (5%) of drowning and 3 (4%) fall from height. Major cause of suicide was family problems 27 cases (44%), 15 (24%) were due to love affair. Female outnumbered male in committing suicide due to lack of support from family and society.

Uso malicioso de una tarjeta comercial hurtada, robada o extraviada: ¿Quién debe soportar el costo de las transacciones no consentidas?

This paper addresses the legal regime applicable to casesin which there is a use of a bank card or trading house by athird party without the consent of the owner. It begins by explainingthe comparative experience, and then referring to the Chilean legalsystem. In this regard, it is postulated that after the notice of loss ortheft made by the cardholder, all costs must be paid by the supplier,unless it is proved that they were made by the owner himself. Bycontrast, the previous charges, are borne by the consumer, unless itis proved that the misuse of the card, was due to a negligent act ofthe provider, in which case the latter should respond.

Synthesis and biological evaluation of novel phosphoramidate derivatives of coumarin as chitin synthase inhibitors and antifungal agents

A series of novel phosphoramidate derivatives of coumarin have been designed and synthesized as chitin synthase (CHS) inhibitors. All the synthesized compounds have been screened for their chitin synthase inhibition activity and antimicrobial activity in vitro. The bioactive assay manifested that most of the target compounds exhibited good efficacy against CHS and a variety of clinically important fungal pathogens. In particular, compound 7t with IC50 of 0.08 mM against CHS displayed stronger efficiency than the reference Polyoxin B with IC50 of 0.16 mM. In addition, the apparent Ki values of compound 7t was 0.096 mM while the Km of Chitin synthase prepared from Candida tropicalis was 3.86 mM for UDP-N-acetylglucosamine, and the result of the Ki showed that the compounds was a non-competitive inhibitor of the CHS. As far as the antifungal activity is concerned, compounds 7o, 7r and 7t were highly active against Aspergillus flavus with MIC values in the range of 1 μg/mL to 2 μg/Ml while the results of antibacterial screening showed that these compounds have negligible actions to the tested bacteria. These results indicated that the design of these compounds as antifungal agents was rational.

Mental Disabilities and Duty in Negligence Law: Will Neuroscience Reform Tort Doctrine?

Recent developments in neuroscience may contribute to some long-needed changes in negligence law. One negligence rule in need of reform is the duty rule allowing physical disabilities to be considered in determining whether a party acted negligently, but disallowing mental disabilities for adult tortfeasors. Further, this bifurcated rule applies imposes an objective standard only on adults alleged to have acted negligently. A subjective standard applies to all parties in intentional torts and to children in negligence actions. Courts justify the bifurcated rule for adults on policy grounds, but these policy underpinnings are no longer valid in contemporary society. More accurate diagnosis of mental conditions through neuroimaging, combined with a better understanding of the behavioral patterns that accompany such conditions, support the need for reform. This article looks at both tort doctrine and neuroscience and concludes that the bifurcated rule is no longer tenable in the era of neuroscience. This article’s modest proposal for understanding how neuroscience may contribute to eliminating the bifurcated rule in tort law is intended as a means to initiate a broader discourse about the potential impact of neuroscience on other aspects of tort doctrine.

Medico-legal analysis of legal complaints in bariatric surgery: a 15-year retrospective study

BackgroundBariatric surgery for severe obesity has become an effective and accepted treatment for sustained weight loss. ObjectivesThe aim of our study was to analyze the complications and issues raised by the experts on which jury or judges’ decisions were made for the different types of bariatric surgery. SettingUniversity Hospital, France. Materials and MethodsWe have carried out a retrospective study of 59 expert review dossiers over a period of 15 years (1999–2014) on the different types of bariatric surgery (laparoscopic adjustable gastric band [LAGB], sleeve gastrectomy [SG], Roux-en-Y gastric bypass [RYGB], vertical banded gastroplasty [VBG], and gastric plication [GP]). ResultsOf the cases, 81% were women and the average age was 39 years old (range 19 to 68 years). Among the procedures giving rise to the complaints, 40% were for LAGB, 28% for RYGB, and 23% for SG. The most common initial complications were perforations (30%), fistulae (27%), bowel obstruction (14%), vascular injuries (9.5%), and infections (peritonitis, pleurisy, abscesses, and so forth) (8%). Revision surgery was required in 78% of patients, and perioperative complications accounted for 28.5% of dossiers. The experts concluded that fault had occurred in 40% of case. Negligence arising from an error deemed to be an act of negligence was found in 30% of cases, 67% of which were because of delayed diagnosis. Major long-term complications accounted for 8% of dossiers and minor long-term complications for 22%. Forty-seven percent of patients completely recovered. ConclusionDelayed diagnosis was the main error established by the experts. Surgeons should remain vigilant postoperatively after every bariatric surgical procedure.

Principles and applications of forensic epidemiology in the medicolegal setting

The discipline of forensic epidemiology, a branch of forensic medicine, provides a systematic approach to the assessment of general and specific (individual) causation, with the results suitable for presentation in a court of law. In the present paper some of the methods utilized in forensic epidemiology are described, along with examples of how such methods can be reliably applied to the evaluation of specific causality in criminal and civil matters. Included in the discussion is the presentation of two case studies in applied forensic epidemiology; one in a civil action for medical negligence, and the other in a homicide investigation. Language: en

Malingering in Forensic Disability-Related Assessments: Prevalence 15 ± 15 %

Psychological injuries concern conditions produced by negligent actions, such as in motor vehicle accidents, and that result in claims for damages, such as in tort. In the psychological injury context, malingering refers to fabrications or gross exaggerations of psychological conditions for purposes of monetary gain. As much as the diagnoses that might result in such cases (e.g., posttraumatic stress disorder, PTSD), chronic pain, persistent postconcussive syndrome (PPCS) after a mild traumatic brain injury (mTBI) are considered contentious, so is the attribution of malingering and related negative response biases. This paper reviews the literature since the publication of the book by Young (2014) on the topic of malingering in the context of psychological injury cases. In particular, it examines the recent literature on the definition of malingering, and its prevalence or base rate, in the forensic disability and related context. The paper reviews not only recent articles, but also the 2015 Institute of Medicine book on the topic of use of validity tests in social security disability examinations. It examines the seminal work of Larrabee, Millis, and Meyers (2009) on the prevalence of malingering and indicates its consistencies. The paper concludes that (a) the definition of malingering can be improved and (b) the prevalence of malingering according to the recent research, as well as in Young’s 2014 book on the topic, is less than Larrabee’s catchy phrase that is prominent in some circles in the literature of 40 ± 10 %. More likely, it gravitates around 10 to 20 % so that, instead of 40 ± 10 %, the most appropriate percentage of malingering and related negative response biases in the disability and forensic context, as well as the clinical context, might be 15 ± 15 %, in general, with the percentage possibly being more than that for cases such as mTBI involving PPCS. These findings are pertinent to practice and for court.

No duty owed to the relatives of a victim of a person with mental illness.

To review the case of an acutely psychotic person who was discharged into the care of a friend whom he killed later the same day, and to consider the reasoning of the High Court in the subsequent negligence action of the victim's relatives. By a narrow interpretation, the High Court found that the exercise of the powers and duties in relation to the involuntary detention of a mentally ill person as prescribed by the Mental Health Act were inconsistent with a common law duty of care to another person or the relatives of another person.