Search Results

The Disintegration of Duty

Ernest J. Weinrib

in Corrective Justice

The classic negligence cases of the twentieth century established a coherent framework for negligence liability, in which, in accordance with corrective justice, the injustice done by the defendant ... More

The classic negligence cases of the twentieth century established a coherent framework for negligence liability, in which, in accordance with corrective justice, the injustice done by the defendant was identical to the injustice suffered by the plaintiff. Crucial to this framework was the general conception of duty articulated by Lord Atkin in Donoghue v Stevenson. This chapter sets out the place of this conception of the duty of care within the ensemble of negligence concepts, as well as the importance of rights (signalled by the Palsgraf case) for duty so conceived. It then describes the disintegration of that conception of duty, and with it the erosion of a coherent law of negligence, paying special attention to the deficiencies of the two-stage test prominent in Canadian tort law. It concludes by setting out two different notions of policy, of which only one is consistent with corrective justice.Less

Consent and private liability in clinical research

Paul B. Miller and Josephine Johnston

in The Limits of Consent: A socio-ethical approach to human subject research in medicine

This chapter explores general theoretical questions relating to consent and private liability in clinical research, focusing on the implications of consent for private law duties of care governing ... More

This chapter explores general theoretical questions relating to consent and private liability in clinical research, focusing on the implications of consent for private law duties of care governing the relationship between physicians and patients in clinical research. It discusses the significance of consent in the foundation, content, and application of duties of care in tort, contract, and fiduciary law. It identifies points of variation in the significance of consent across these categories of private liability. It also traces the implications of each category of liability and the points of difference between them for the relationship between physicians and patients in clinical research. The chapter concludes with some brief remarks on potential problems reconciling these differences in the event of concurrent liability.Less

The Duty of Care in Obstetrics and Midwifery

John Seymour

in Childbirth and the Law

Chapter 10 showed that the application of the principles of tort law in cases of obstetric negligence has presented complex problems. In particular, while negligence law requires proof of a breach of ... More

Chapter 10 showed that the application of the principles of tort law in cases of obstetric negligence has presented complex problems. In particular, while negligence law requires proof of a breach of a duty of care as the first step in a successful damages claim, defining the duty borne by those who provide antenatal and perinatal care is difficult. This chapter offers two definitions of this duty and explores some of the implications of adopting them. Before this task is undertaken, it is necessary to refer to the changing social climate in which doctors and midwives must discharge the obligations the law imposes on them. This climate is likely to affect the way in which the principles determining their liability will be applied.Less

Constraints on Discretion: Part 1—Directors

Carsten Gerner-Beuerle and Michael Schillig

in Comparative Company Law

This chapter discusses two general types of behavioural constraints on managerial decision-making that can be found in most legal systems: the duties of care and loyalty. The former deals with the ... More

This chapter discusses two general types of behavioural constraints on managerial decision-making that can be found in most legal systems: the duties of care and loyalty. The former deals with the care, skill, and diligence that a director is expected to employ in managing a company. The latter deals with situations where a director’s interest conflicts with the interests of the company, notably where the director is a shareholder or otherwise involved in a business partner of the company or takes advantage of a business opportunity that could also be of commercial interest to the company.Less

Duty of Care and Public Authority Liability

Elizabeth Anne Gumbel

in Tom Bingham and the Transformation of the Law: A Liber Amicorum

This chapter deals with Lord Bingham's important contribution to altering the boundaries that limit claims for breach of duty by public authorities by analyzing a selection of his judgments. Lord ... More

This chapter deals with Lord Bingham's important contribution to altering the boundaries that limit claims for breach of duty by public authorities by analyzing a selection of his judgments. Lord Bingham examines the fairness of the situation on a factual case-by-case basis, rather than to apply a narrow legalistic approach, and considers the role of the Human Rights Act.Less

10. The Law of Torts in the Twentieth Century: Expansion and Collapse of the Tort of Negligence

D. J. IBBETSON

in A Historical Introduction to the Law of Obligations

The tort law of negligence was thoroughly fragmented in the 19th century. This chapter shows how, in the 20th century, the practice moved in the direction of theory as the tendency towards ... More

The tort law of negligence was thoroughly fragmented in the 19th century. This chapter shows how, in the 20th century, the practice moved in the direction of theory as the tendency towards fragmentation was reversed. Detailed duties of care were superseded by a single duty of care. The component parts of the tort—duty, breach, remoteness—increasingly merged into each other. Moreover, it no longer seemed self-evident that there should be a link between legal liability and wrongdoing, with the result that the idea of negligence as a failure to take the care that would have been taken by a reasonable man began to degenerate back to an undifferentiated notion of blameworthiness.Less

Torts, Rights, and Risk

Stephen Perry

in Philosophical Foundations of the Law of Torts

This chapter explores some questions concerning the relationship between torts, rights, and the concept of risk, beginning with the doctrinal element of a duty of care in negligence law. The idea of ... More

This chapter explores some questions concerning the relationship between torts, rights, and the concept of risk, beginning with the doctrinal element of a duty of care in negligence law. The idea of a general duty of care has almost disappeared from the prevailing American academic understanding of negligence law, owing largely to the influential instrumentalism of Oliver Wendell Holmes, the legal realists who followed him, and William Prosser. This has given rise to a predominant academic understanding of the nature of tort law in the United States which in certain respects is strikingly different from the traditional rights-based understanding that still prevails in England and the Commonwealth. This chapter elucidates the element of duty of care in negligence law by examining its underpinnings in moral theory, with a view to reinforcing the traditional understanding of the duty element and, in the American context, to perhaps contributing to its rehabilitation. Clarifying the moral character of the duty element and its relationship to risk and rights lends at least indirect support for a rights-based understanding of negligence law, and ultimately of tort law as a whole.Less

England

Cees Van Dam

in European Tort Law

This chapter analyzes English tort law, which is characterized by its traditional approach based on its roots in medieval times. The area of non-contractual liability is not governed by rules but by ... More

This chapter analyzes English tort law, which is characterized by its traditional approach based on its roots in medieval times. The area of non-contractual liability is not governed by rules but by torts which provide a remedy (e.g., damages) if something has gone wrong in a particular way. There are a multitude of specific torts, but the most important and most general is the tort of negligence. This tort imposes liability on an individual who has not acted carefully, but only if that person owed another person a duty of care. This latter aspect is the most characteristic feature of the tort of negligence, and in a number of areas it is still an important obstacle for liability.Less

Participation Rights in EU Administrative Rule‐making

Joana Mendes

in Participation in EU Rule-Making: A Rights-Based Approach

Chapter 5 examines the Courts' approach to participation in rulemaking procedures analysing in depth the Courts' leading ruling on this matter (Atlanta). It argues that the different positions of the ... More

Chapter 5 examines the Courts' approach to participation in rulemaking procedures analysing in depth the Courts' leading ruling on this matter (Atlanta). It argues that the different positions of the Court on the right to be heard in individual procedures, on the one hand, and rulemaking procedures, on the other, are grounded in the same premise: the preconception regarding the structure of the procedure characterised in Chapter 4. The reasons why the Courts excluded general acts from the realm of participation rights — representative democracy, institutional balance, and inaccurate classification of legal acts — are scrutinised and criticised. Furthermore, this chapter argues that the concept of participation rights adopted in the book may contribute to surmount the shortcomings of the Courts' approach. Finally, it analyses the possible impact of the modifications proposed on the scope of other procedural guarantees: access to information, the duty to state reasons, the duty of careful and impartial examination and language rights.Less

The Function of Trusts in Business and Commerce

M. W. Lau

in The Economic Structure of Trusts: Towards a Property-based Approach

This chapter examines the reasons behind the trust's popularity in business and commerce. Although the trust is neither a legal entity nor an economic firm, it is widely used in structuring ... More

This chapter examines the reasons behind the trust's popularity in business and commerce. Although the trust is neither a legal entity nor an economic firm, it is widely used in structuring transactions and investment funds. This chapter observes that the trustee's duty of care encourages prudence and conservatism. Also, the duty of impartiality, which is not a feature of corporations, ensures that different classes of investors are treated fairly. But both duties can arguably be replicated in corporations so they are not truly unique to trusts. Rather, this chapter argues that it is the trust's lack of legal personality and lack of intra-firm transfers that make it uniquely suitable for certain commercial transactions. The weak liability protection for the trustee means that it is only suitable for conducting relatively simple activities, such as holding property.Less

Negligence Liability

Ernest J. Weinrib

in The Idea of Private Law

This chapter elucidates the immanence of corrective justice in negligence liability. It examines each of the negligence concepts (reasonable care, the duty of care, proximate cause, factual cause, ... More

This chapter elucidates the immanence of corrective justice in negligence liability. It examines each of the negligence concepts (reasonable care, the duty of care, proximate cause, factual cause, and the contrast of misfeasance and nonfeasance) and shows how these constitute a unified ensemble that treats the progression from the defendant's action to the plaintiff's injury as a single normative sequence. Central to this linkage of plaintiff and defendant is the idea of risk, because (as the Palsgraf case stated) ‘risk imports relation’. Each of the concepts traces an actual or potential connection between doing and suffering, and together they translate into juridical terms the movement of effects from doer to sufferer.Less

The Dog Not Barking: A Duty of Care in Microfinance

Lesley Sherratt

in Can Microfinance Work?: How to Improve Its Ethical Balance and Effectiveness

Chapter 5 argues that Micro Financial Institutions (MFIs) owe a duty of care to borrowers, but that this duty is currently largely unfulfilled. A duty of care in microfinance is defined as requiring ... More

Chapter 5 argues that Micro Financial Institutions (MFIs) owe a duty of care to borrowers, but that this duty is currently largely unfulfilled. A duty of care in microfinance is defined as requiring the MFI to safeguard its borrowers from the harm that can come to them from borrowing from the MFI, paternalistically if necessary. MFIs do claim to paternalistically protect their borrowers through such measures as compulsory basic business training and enforcing compulsory savings. But although some current practices are found to be justifiably paternalistic, others are found not to be paternalistic, their true purpose being the benefit of the MFI rather than the borrower. What is required to fulfill a duty of care is specified, and it is argued that exercising a duty of care to borrowers needs to become a key part of MFI practices, and oversight of it a key part of an MFI’s board’s governance.Less

Ethics and primary health care

Charles Campion-Smith

in Ethics: Contemporary challenges in health and social care

This chapter discusses the ethical aspects of everyday work in primary health care in the UK. The four main ethical concepts described in Chapter Two – beneficence, non-maleficence, autonomy, and ... More

This chapter discusses the ethical aspects of everyday work in primary health care in the UK. The four main ethical concepts described in Chapter Two – beneficence, non-maleficence, autonomy, and justice – are reviewed within the context of primary health care. The chapter discusses issues such as the conflicting responsibilities for primary health professionals in their duty of care to an individual and to the greater community. It considers the implications of evidence-based clinical care and the concept of clinical equipoise, as well as issues of competence and consent. The uncertain and complex world of primary health care is described as the setting for these issues, and the allocation of restricted resources is reviewed. The need to take into account patients' views, beliefs, and values, as well as implications for teaching and research in primary care, are discussed. Future challenges, including the implications of the 2006 White Paper, Our health, our care, our say, are also considered.Less

Some Thoughts on the Nature of Liability for Negligence in Scots Law

Joe Thomson

in Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry

This chapter considers the nature of liability to make reparation for losses caused by negligence. It focuses on the situation where losses have arisen as a result of personal injury or physical ... More

This chapter considers the nature of liability to make reparation for losses caused by negligence. It focuses on the situation where losses have arisen as a result of personal injury or physical damage to property. The discussions cover the function of the law of negligence; constituent harm; the duty of care; breach of duty; reparation for losses; and remoteness of losses.Less

Directors’ Duties

Paul Davies

in Introduction to Company Law

This chapter examines the law on directors’ duties, as restated in the Companies Act 2006, other than the core duty of loyalty which is discussed in Chapter 2. It covers the duty of care, the duty to ... More

This chapter examines the law on directors’ duties, as restated in the Companies Act 2006, other than the core duty of loyalty which is discussed in Chapter 2. It covers the duty of care, the duty to act within powers, the duty to exercise independent judgement, and, most importantly, the application of fiduciary duties to various types of conflict of interest. Many of the most interesting doctrinal questions about company law arise in this area and it is righly placed at the center of many company law courses. However, it may that other sets of rules, discussed in earlier chapters, are more important in practice in the regulation of internal company relations. In addition to the substantive law, the remedies available in respect of breaches are analysed, as is the freedom of shareholders to waive breaches of duty, both after and before the event.Less

The Structure of Property Law

Jesse Wall

in Being and Owning: The Body, Bodily Material, and the Law

This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the ... More

This chapter aims to identify the ‘structural’ (or ‘doctrinal’) features of property law, compare these features with other branches of law, and consider how these features have been applied to the use and storage of bodily material. Since property rights are exclusive rights, property rights are exercisable against an open-set of persons, actionable per se, and impose duties of non-interference. This set of features can explain why there is pressure on the common law to recognize property rights in bodily material: to pull the entitlements in bodily material behind an ‘exclusionary boundary’. Additionally, since property rights are also rights that can exist independently of the particular rights-holder, they impose corrective remedial duties and are transferable. This set of features can begin to explain why there are limits to the appropriate application of property law: not all rights regarding an object or resource can exist independently of the rights-holder.Less

Multital Jural Relations

J. E Penner

in Property Rights: A Re-Examination

This chapter advances a number of criticisms of Hohfeld’s ‘multital’ analysis of rights in rem. The chapter shows: (1) that Hohfeld confuses the connections between rights and duties, in particular ... More

This chapter advances a number of criticisms of Hohfeld’s ‘multital’ analysis of rights in rem. The chapter shows: (1) that Hohfeld confuses the connections between rights and duties, in particular rights in rem and general and special rights, and general duties; (2) that the claim that the general norm not to interfere with the property of others is not a public law duty, as some, relying upon Hohfeld, have claimed; (3) that the duty of care in negligence law cannot be squared with Hohfeldian analysis; and (4), that it individuates duties incorrectly.Less

Survivors of domestic violence, community and care

Paula Wilcox

in Care, community and citizenship: Research and practice in a changing policy context

This chapter extends an earlier discussion on communities and their responsiveness to domestic violence survivors, drawing on empirical research carried out in 2005 and 2006 with survivors in the ... More

This chapter extends an earlier discussion on communities and their responsiveness to domestic violence survivors, drawing on empirical research carried out in 2005 and 2006 with survivors in the south of England. It looks at how dominant definitions of domestic violence have tended to exclude community considerations, and then examines state-sponsored policies and their influences on work against domestic violence. From this point the chapter addresses the need to approach work in the community with a gendered and raced lens, moving on to explore domestic violence survivors' different motivations for involvement in community groups, in contrast to dominant ideas about responsible citizenship used in public discourse. Lastly, the chapter considers the links between traditionally gendered discourses of caring and their impact on the hidden nature of domestic violence survivors. It concludes by arguing that there is a duty of care to address the support of domestic violence survivors in communities.Less

The Revolution in Consideration Doctrine

in Calculating Promises: The Emergence of Modern American Contract Doctrine

In the latter part of the nineteenth century, the requirement of consideration became entrenched as one of the most distinctive features of the common law, especially when compared with the contract ... More

In the latter part of the nineteenth century, the requirement of consideration became entrenched as one of the most distinctive features of the common law, especially when compared with the contract law of continental Europe. Consideration was revolutionized based on two objectives. The first was purification and unification, whereby extraneous functions of consideration doctrine were eliminated or submerged and replaced with the question of which promises should be enforced by the law. The second objective was to make the enforceable promises (or, simply, the doctrine of consideration) the basis of contract law. This two-pronged strategy worked to submerge the question of the stakes in distinguishing between gifts and contracts, between gratuitous undertakings and those supported by consideration. Prior to the classical theoretical revolution in consideration doctrine, consideration was involved in determining four central issues, none of which addressed the question of whether a promise was enforceable: the duty of care in an undertaking, the extent of liability, privity of contract, and whether an obligation could be implied.Less