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Taking on Goliath: Why Personal Injury Litigation May Represent the Future of Transnational Cause Lawyering

Anne Bloom

in Cause Lawyering and the State in a Global Era

This chapter examines the background and litigation proceedings in the case of Dow Chemical Company and Shell Oil Company versus Domingo Castro Alfaro (et al.), a case in which a Texas personal ... More

This chapter examines the background and litigation proceedings in the case of Dow Chemical Company and Shell Oil Company versus Domingo Castro Alfaro (et al.), a case in which a Texas personal injury firm attempted to police the misconduct of a group of multinational corporations operating in Costa Rica by filing suit in Texas. The litigation in the Alfaro case involved allegations of wrongful exposure to pesticides of workers employed on a U.S. banana plantation, whose crop was shipped to the U.S.A. The defendants argued that the Texas court lacked jurisdiction to hear the case. In a ruling that sent shock waves throughout the international business community, the Texas Supreme Court disagreed. The Alfaro case opened up a new vista of transnational litigation for cause lawyers.Less

Personal Injuries

Michael Lobban

in The Oxford History of the Laws of England: Volume XII: 1820–1914 Private Law

Since the age of industrialization and urbanization was also one of accidents, personal injury suits constituted a high proportion of cases heard by common law judges. In deciding how far those who ... More

Since the age of industrialization and urbanization was also one of accidents, personal injury suits constituted a high proportion of cases heard by common law judges. In deciding how far those who had caused accidents were responsible for the harms that ensued, the courts did not develop a general tort of negligence, but looked rather at the particular rights and duties of each of the parties. In dealing with personal injury cases, the courts looked at whether any duty was owed to the victim, and if so, what kind of duty it was. The courts set limits to the reach of liability for accidents that occurred in the world at large by limiting such duties to a defined number, derived from the established categories such as trespass, nuisance, contract, or deceit. This chapter on personal injuries in the 19th century discusses railway accidents, accidents on highways, occupiers' liability, dangerous goods, and damages for personal injury.Less

Workplace Injuries

Michael Lobban

in The Oxford History of the Laws of England: Volume XII: 1820–1914 Private Law

This chapter on workplace injuries in the 19th century covers workmen and the common law, the Employers's Liability Act 1880, and Workmen's Compensation Act 1897.

‘The Instrumentality of Others’: Railway Accidents and the Courts, 1840–1875

R. W. Kostal

in Law and English Railway Capitalism 1825–1875

In the 1840s injured railway passengers and employees alike commenced legal actions for damages. It is clear that many lawyers of the era believed that both kinds of accident victims might commence ... More

In the 1840s injured railway passengers and employees alike commenced legal actions for damages. It is clear that many lawyers of the era believed that both kinds of accident victims might commence viable legal actions for damages against a railway company. By the early 1850s, however, the relative viability of the two causes of action had changed dramatically. While injured railway passengers (or their heirs) brought lawsuits against railway companies in growing numbers, injured railway workers (or their heirs) now only rarely sued employers. This turn of events was the predictable result of a series of judicial choices. Drawing on a fluid blend of pre-railway-era legal precedent and railway-era social and economic concerns, England's common law judges created a body of decisional law that was exceedingly generous to injured railway patrons, but almost intractably ungenerous to injured railway labourers. Although railway employers were maimed and killed much more frequently than railway passengers, their losses contributed few cases to the swell of personal injury litigation against railways after 1850. For the entire period 1840–75, however, the key judicial choices in the field of accident law were not disturbed.Less

Definition and History of the Concept of Psychological Injury

William J. Koch, Kevin S. Douglas, Tonia L. Nicholls, and Melanie L. O'Neill

in Psychological Injuries: Forensic Assessment, Treatment, and Law

This chapter presents a coherent definition of psychological injury. Psychological injuries are stress-related emotional conditions resulting from real or imagined threats or injuries that may become ... More

This chapter presents a coherent definition of psychological injury. Psychological injuries are stress-related emotional conditions resulting from real or imagined threats or injuries that may become the subjects of personal injury litigation, workers compensation claims, criminal injury compensation, other disability claims, or human rights tribunals. Such disorders include post-traumatic stress disorder (PTSD), acute stress disorder (ASD), major depressive episode (MDE), substance abuse disorders, and a myriad of other less-defined anxiety and depressive reactions. It is a concept that involves harm, though harm of a primarily nonphysical nature (acknowledging that many psychological conditions have biophysical correlates). The concept also involves not only harm, but enough harm to mean that it needs to be considered by legal mechanisms. There must be interests protected; for example, the interest protected by the tort of battery is physical integrity, and the interest protected by the torts of intentional or negligent infliction of emotional distress is emotional tranquility.Less

Damage and Damages

Cees van Dam

in European Tort Law

This chapter discusses damage and damages, including contributory negligence, as they relate to tort law in Europe and the European Union. The rights to compensation of the victim for personal injury ... More

This chapter discusses damage and damages, including contributory negligence, as they relate to tort law in Europe and the European Union. The rights to compensation of the victim for personal injury differ substantially from system to system, particularly in the area of non-pecuniary loss. Differences are also apparent if someone gets injured or dies as the consequence of an accident, in which case his relatives will also suffer harm: pecuniary harm for the loss of maintenance and non-pecuniary harm for the loss of a beloved one (damages for bereavement or for grief and sorrow). The chapter also analyses the rules applying to the victim’s contributory negligence. Whereas England and Germany are reluctant in attributing contributory negligence to children, the approach in France is remarkably less advantageous for children.Less

Plaintiffs Who Malinger: Impact of Litigation on Fake Testimony

Ryan C. W. Hall and Richard C. W. Hall

in New Perspectives on Faking in Personality Assessment

This chapter discusses how psychometric testing can aid clinicians and forensic experts in understanding a patient/examinee. In addition, the chapter discusses how psychometric test results ... More

This chapter discusses how psychometric testing can aid clinicians and forensic experts in understanding a patient/examinee. In addition, the chapter discusses how psychometric test results suggestive for malingering may look based on the malingerer’s situation (e.g. criminal or civil context), motivation (faking good or faking bad), and sophistication (e.g., coached). Other factors that may also result in symptom elevation scores (e.g., stress of a lawsuit, response bias, unconscious factors), which may not be due to a clear intention to malinger, are also discussed. The chapter concludes with a discussion of the ethical obligations inherent with the use of these tests (e.g., test integrity, informing about validity scales, sharing of results).Less

English Law: Crime, the Criminal Process and ‘Essentially Civil Claims’

SIMON WHITTAKER

in Liability for Products: English Law, French Law, and European Harmonization

English law possesses an elaborate and wide-ranging series of criminal offences which sanction the manufacture or supply of an unsafe product (whether or not it causes personal injury or death), and ... More

English law possesses an elaborate and wide-ranging series of criminal offences which sanction the manufacture or supply of an unsafe product (whether or not it causes personal injury or death), and its criminal courts possess broad powers to order any person convicted of a criminal offence to compensate the victim of the crime. Nevertheless, the criminal law and the criminal process in England play only a very marginal role in providing compensation for accidental death and personal injury, including in cases involving unsafe products. This marks a very striking contrast with the position described for France. This chapter discusses the features of the English system.Less

ALL IN A DAY’S WORK: Traumatic Events in the Line of Duty

CHERYL REGEHR and TED BOBER

in In the Line of Fire: Trauma in the Emergency Services

This chapter describes the multiple traumatic events encountered by emergency responders, drawing directly on interviews with emergency responders. While most discussed horrific events which ... More

This chapter describes the multiple traumatic events encountered by emergency responders, drawing directly on interviews with emergency responders. While most discussed horrific events which contained much blood and gore, they were quick to add that these were not the events that “have left me sleepless.” The events that were most troubling for paramedics, firefighters, and police officers did not involve multiple deaths in a dramatic incident, but rather involved the death or injury of someone that the worker contextualized in relationship to others. These events connected personally with the emergency responder and often caused them to re-evaluate their own relationships, priorities, and achievements. These findings require a rethink of intervention models that focus on high profile, dramatic incidents and ensure that services are available to allow workers to discuss personal reflections of tragic, yet unsung events.Less

Damage and Damages

Cees Van Dam

in European Tort Law

This chapter begins with a discussion of the functions of damages: these are not only aimed at compensating the claimant but also at vindicating his rights and deterring the tortfeasor and other ... More

This chapter begins with a discussion of the functions of damages: these are not only aimed at compensating the claimant but also at vindicating his rights and deterring the tortfeasor and other potential wrongdoers. The victim's right to damages for personal injury differs substantially from system to system, particularly in the area of non-pecuniary loss. Moreover, differences are apparent if someone is injured or killed in an accident, and as a consequence, his relatives suffer harm. The chapter also analyzes the rules applying to the victim's contributory negligence. This defence generally leads to a lower amount of damages and, in extraordinary circumstances, even to zero compensation. Whereas England and Germany are reluctant to attribute contributory negligence to children, the French approach is remarkably less child-friendly.Less

The Law of Bodily Injury

Melissa Milewski

in Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights

Chapter 7 examines the personal injury suits that formed almost half of the civil suits between black and white litigants in eight state supreme courts from 1900 to 1920. Facing terrible pain and ... More

Chapter 7 examines the personal injury suits that formed almost half of the civil suits between black and white litigants in eight state supreme courts from 1900 to 1920. Facing terrible pain and loss in the wake of their own or loved one’s injuries, some African Americans turned to the courts to gain damages. There, in a time of encroaching segregation and racial injustice, a number of black litigants found disproportionate success in the realm of tort litigation. During their trials, black litigants shaped their testimony to meet the legal basis of personal injury, emphasizing their own caution at the time of the accident, their continuing pain and weakness from the injury, and the loss of income they had incurred. As in fraud cases, their claims of weakness and vulnerability could reinforce white judges’ and jury members’ ideas about racial inequality, but also allowed them to frequently win such suits.Less

Damages

Martha Chamallas and Jennifer B. Wriggins

in The Measure of Injury: Race, Gender, and Tort Law

This chapter examines the expressive and material importance of damages, with particular emphasis on how race and gender have affected the amount of damages awarded to plaintiffs in personal injury ... More

This chapter examines the expressive and material importance of damages, with particular emphasis on how race and gender have affected the amount of damages awarded to plaintiffs in personal injury cases. There are two categories of tort damages: compensatory damages and punitive damages. Compensatory damages are often awarded and are considered the “normal” remedy in tort cases. To accomplish the restorative function of tort law to the widest extent possible, compensatory damages are awarded to cover a wide variety of losses, including economic damages and noneconomic harms. This chapter comments on the use of race-based and gender-based tables and statistics to compute loss of future earning capacity, arguing that such estimations are neither accurate nor equitable. It explains how women and racial minorities have been affected by legislative caps on noneconomic damages for pain and suffering and other intangible losses. It contends that non-economic losses should be treated on a par with economic losses.Less

Don’t Crash into Mick Jagger When He Is Driving His Rolls Royce: Liability in Damages for Economic Loss Consequent upon a Personal Injury

James Penner

in Civil Wrongs and Justice in Private Law

This chapter deals with damages in the context of tort law. In this case, the greater the loss, the larger the damages award. The chapter examines this fundamental commitment. It argues that it is ... More

This chapter deals with damages in the context of tort law. In this case, the greater the loss, the larger the damages award. The chapter examines this fundamental commitment. It argues that it is unfair that someone wealthy, like Mick Jagger, would be owed greater compensation if he were negligently injured in a crash involving his luxury car than the average person would be if the roles were reversed. The chapter pursues a justification for the kind of consequential loss-based tort that would enable someone like Mick Jagger to be so compensated, but finds none. While the case is strong for fully compensating someone for negligently inflicted bodily injury insofar as everyone has a right of bodily integrity, the case for compensating someone for negligently caused lost wealth is weak for such compensation is neither essential to respecting bodily integrity nor does anyone have a moral obligation “to ensure that the wealthy remain wealthy.”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

The Collective Injury of Sexual Harassment

Dorothy Roberts

in Directions in Sexual Harassment Law

This chapter explains the collective harm of sexual harassment, which affects the status of all women in the workplace where it occurs, in the labor market, and in society as a whole. Although sexual ... More

This chapter explains the collective harm of sexual harassment, which affects the status of all women in the workplace where it occurs, in the labor market, and in society as a whole. Although sexual harassment inflicts a personal injury on the victim, “it is a social wrong and a social injury that occurs on a personal level.” It is this aspect of sexual harassment—its discrimination on the basis of sex—that brings it within the purview of Title VII. The chapter reiterates the importance of recognizing sexual harassment's collective injury, especially in considering the question of whether or not harassing speech is protected by the First Amendment. It focuses on the most common claim of sexual harassment in the workplace: harassment of women by men.Less

The law of uncivil actions

Ann Oakley

in Fracture: Adventures of a broken body

Personal injury cases are ‘the heart and soul’ of tort law — the law of ‘civil wrongs’ that decides when people should be financially compensated for adverse events that happen to their bodies or ... More

Personal injury cases are ‘the heart and soul’ of tort law — the law of ‘civil wrongs’ that decides when people should be financially compensated for adverse events that happen to their bodies or their minds. This chapter recounts the Oakley v White Creek Lodge case. The case is not only about the law relating to accidental injury, but it's also about how bodies feature in legal systems. The chapter criticizes the US litigation industry and stipulates that the reasons behind why lawyers flourish in the USA is because the welfare system leaves many holes that injury compensation can fill and legal practice was deregulated in the 1970s, so that, for the first time, lawyers were able to advertise their services and tout for business.Less

6 Damages

Martha Chamallas and Jennifer B. Wriggins

in The Measure of Injury: Race, Gender, and Tort Law

This chapter examines the expressive and material importance of damages, with particular emphasis on how race and gender have affected the amount of damages awarded to plaintiffs in personal injury ... More

This chapter examines the expressive and material importance of damages, with particular emphasis on how race and gender have affected the amount of damages awarded to plaintiffs in personal injury cases. There are two categories of tort damages: compensatory damages and punitive damages. Compensatory damages are often awarded and are considered the “normal” remedy in tort cases. To accomplish the restorative function of tort law to the widest extent possible, compensatory damages are awarded to cover a wide variety of losses, including economic damages and noneconomic harms. This chapter comments on the use of race-based and gender-based tables and statistics to compute loss of future earning capacity, arguing that such estimations are neither accurate nor equitable. It explains how women and racial minorities have been affected by legislative caps on noneconomic damages for pain and suffering and other intangible losses. It contends that non-economic losses should be treated on a par with economic losses. Less

France

Cees van Dam

in European Tort Law

In France, tort law is characterised by its broad general principles and its general lack of detail. The rule of strict liability has been developed by the Cour de cassation, which also developed a ... More

In France, tort law is characterised by its broad general principles and its general lack of detail. The rule of strict liability has been developed by the Cour de cassation, which also developed a general strict liability rule for damage caused by other people. This rule supplements the more specific strict liability rules for parents (for damage caused by their children) and for employers (for damage caused by their employees). Hence, in France, in cases of personal injury and property loss, strict liability is the rule and fault liability the exception. This chapter presents general observations on France's fault liability (including abuse of rights), general rule of strict liability for things, specific rules of strict liability for things, general rule of strict liability for persons, and specific rules of strict liability for persons.Less

The Development of Civil Law’s Response to Worldly Women and Precocious Teenagers: Historical Wisdom or Oppressive Judgment?

Jennifer Ann Drobac

in Sexual Exploitation of Teenagers: "Adolescent Development, Discrimination, and Consent Law"

The civil system addresses personal injury, sexual exploitation, and “consent,” among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human ... More

The civil system addresses personal injury, sexual exploitation, and “consent,” among other matters, through common law tort (personal injury) laws or more modern state statutory responses to human interactions. This chapter provides the civil law backdrop for the analysis of how adults, and especially jurists, might use the new information regarding adolescent development and psychosocial maturity. By comparing the varied traditional civil law approaches to juvenile behavior, this chapter reveals gross legal inconsistencies between criminal and civil law treatment of adolescent capacity and “consent.” Before one evaluates the efficacy of modern anti-discrimination statutes, most not designed to protect “consenting” teenagers, one should consider the development of civil common law rules that cover similar behavior. These common law claims highlight the importance of capacity and consent. They influenced the development of antidiscrimination law and, perhaps, reveal clues about how jurists exported some traditional and discriminatory attitudes to those new laws.Less

Environmental Damage and Genetically Modified Organisms

Ruth Mackenzie

in Environmental Damage in International and Comparative Law: Problems of Definition and Valuation

This chapter focuses on the risks posed by genetically modified crops. It argues that many of the risks which are likely to materialize fall comfortably within traditional heads of damage such as ... More

This chapter focuses on the risks posed by genetically modified crops. It argues that many of the risks which are likely to materialize fall comfortably within traditional heads of damage such as personal injury or damage to property. There is also, however, a risk of environmental damage per se, which legal systems may find more problematic. In particular, the notion of damage to ‘biological diversity’ requires careful consideration, especially in light of the definition in the Biodiversity Convention. In the same context, while compensable damage should include the costs of preventive measures and reasonable measures of reinstatement, it should not be so limited, since it may well no longer be feasible to recall the GMO in question.Less