Tort Law and Accountability (original) (raw)
Related papers
Compensation for Wrongful Injury in Ireland: Principles, Practice and Cost to the State
2020
Compensation for future loss due to wrongful injury in Ireland is currently determined at discount rates that do not take account of current market conditions and on a historic mortality basis. We quantify the impact of assessing damages using a more appropriate discount rate, mortality basis, and method of capitalising the loss. This results in the quantum of damages increasing significantly, and figures are given quantifying the increase by the term of the loss. Total outstanding liabilities of the State Claims Agency now exceed €3 billion, about half of which is in respect of catastrophic birth injuries caused by negligence in the delivery of maternity services. The change in the basis by which compensation is calculated outlined in this paper would increase the estimate of outstanding liabilities by over €1 billion and perhaps closer to €2 billion. We argue the current under-compensation of plaintiffs incentivises the State to settle by way of lump sum and is therefore an obstac...
The Cambridge Law Journal, 2008
Few commentators would express satisfaction with the current state of the tort of negligence. The case-law is unpredictable, lacks clarity and the tests provided applied in an inconsistent manner. It is easy to blame such uncertainty on the desire of the judges to achieve 'justice'. In White v Jones, Lord Goff accepted that 'The question therefore arises whether it is possible to give effect in law to the strong impulse for practical justice. .. For this to be achieved. .. the court will have to fashion "an effective remedy".' 1 Lord Bingham in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) demonstrated that such an approach is far from unique. 2 In so doing, the judiciary demonstrate a willingness to look far beyond the case itself and consider its wider implications to society as a whole. 3 Yet, in so doing, recognition is still made of the need for such decisions to exist within a doctrinal framework. In Fairchild, Lord Nicholls stated: 'To be acceptable the law must be coherent. It must be principled. The basis on which one case, or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law'. 4 The question remains whether the current state of the tort of negligence is a natural result of its breadth as a tort or represents 'the disintegration of the modern law'. In his book, Beever asserts the latter view. In a forceful thesis, he argues that the current lack of transparency, uncertainty and, he claims, illegitimate assertion by individual judges of policy concerns, can be avoided. One simply needs to 'rediscover' the principled basis of the tort. To do so he focuses on five "great" cases:
Ireland: an old doctrine of insurance law revisited
2002
At the invitation of the British Insurance Law Association Trust, Sir Andrew Longmore delivered the first Pat Saxton Memorial Lecture Oil March 5, 2001. His lecture was entitled "An Insurance Contr,lCts Act {I.)!' a New Century". In the lecture Sir Andrew suggested that the Marine Insurance Act, 1906, in England and Wales was a "brilliant synthesis of a f· I 1" " I I I "N maze o· common aw (eCISlons. .. e went on to note: ow, a century later, it is operating as too tight a straitjacket. The best way of celebrating Sir Mackenzie Chalmers considerable achievement would he to have an Ins\lrance Contracts Act of say 2002 or even, if necessary, 2{)06 to mark the centenary of the 1906 Act so that it might be possible to enact sensible reform f(n insurance law as a whole."2 As regards the content of such legislation, Sir Andrew noled thaI Ihere was an argument "for codification of insurance law in general", but believed it would be an "...
The Emergence of Cost-Benefit Balancing in English Negligence Law
SSRN Electronic Journal, 2002
for helpful comments. I began working on this Article almost a decade ago, but abandoned it after writing a preliminary draft. That 1992 draft, which has never been published, but which I circulated in manuscript form to a handful of readers, has occasionally been cited in law reviews.
This paper examines the UK government’s reform of the current system of clinical negligence litigation in England, focusing on an analysis of the redress scheme for low value claims to be established under the NHS Redress Act 2006. The Act establishes a scheme to provide a package of redress to patients in circumstances where they have suffered harm as a result of negligence during the course of medical treatment provided by the NHS. One of the British Government’s central aims in embarking upon reform in this area was to provide a low cost, quick and genuine alternative to the current clinical negligence litigation system. This paper critically analyses this reform of the current system by reference to an examination of what constitutes a just redress scheme in the circumstances. Such analysis shows that the government has missed a golden opportunity to establish a scheme which truly ‘makes amends’ to patients who have suffered harm through medical treatment in the NHS. Instead, the scheme is likely to operate in practice as an administrative scheme for low value claims that serves the institutional and financial interests of the NHS, and therefore fails to address longstanding patient concerns over the provision of redress arising out of harm suffered through medical treatment. As a result, patient confidence in the scheme is likely to be undermined in the long term.
The systemic faults of medical negligence litigation in Ireland: origins, causes, and reform.
1 I hereby certify that this dissertation, which I now submit for assessment on the programme of study leading to the award of Bachelor in Civil Law is entirely my own work and has not been taken from the work of others save and to the extent that such work has been cited and acknowledged within the text of my work. Module name: Dissertation Module Code: LG353 Supervisor name: Dr Brenda Daly 2 To Aoife Mullen for pushing me on when I thought I would never get this finished, my supervisor Brenda Daly for her constant patience and encouragement, and to Jamie Hart who gave to me a love of law that will extend for the rest of my life. Abstract 3
Causal Connection between Tort and Loss: The Doctrine of the ‘Lawful Alternative’
SSRN Electronic Journal, 2000
The doctrine of the lawful alternative argues that in tort law it is not sufficient that a condition sine qua non connection exists between an act and the loss. It requires instead that there should be a causal connection between the wrongfulness of the act and the loss. It is regularly argued that this would result in too drastic a curtailment of liability. This objection in our view however rests on an incorrect interpretation of the doctrine. The issue that is the subject of this contribution is familiar in several jurisdictions. It has led to systematic study, which is of importance to understand the correct interpretation of the doctrine. The Law and Economics literature also has spent attention to the concept of the lawful alternative, although it does not seem to have penetrated the mainstream literature yet.
Victoria University of Wellington Law Review
True proportionality between the degree of a tortfeasor's fault and the extent of a plaintiff's loss is unachievable in negligence law in New Zealand. As Mallon J's judgment in Strathboss Kiwifruit Ltd v Attorney-General highlighted, the concept of proportionality can only be used to negate an alleged tortfeasor's duty of care, thereby eliminating the potential for liability. This approach does not accommodate differing levels of disproportionality. Moreover, relying on negligence law's liability limiting mechanisms to achieve proportionality, as Mallon J did in Strathboss, will not always be fruitful; there may still be a large gap between what a defendant has done and what the defendant is held accountable for. The extent of a tortfeasor's liability may depend on luck rather than principle. However, internationally, the wrongful conception and birth cases reveal a more nuanced use of proportionality: reducing the scope of a tortfeasor's duty of care. Wh...