Negligence

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James Goudkamp - One of the best experts on this subject based on the ideXlab platform.

  • the contributory Negligence doctrine four commercial law problems
    Social Science Research Network, 2017
    Co-Authors: James Goudkamp
    Abstract:

    The law of contributory Negligence is often treated as an afterthought by academics. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory Negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory Negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory Negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v. Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory Negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory Negligence.

  • the contributory Negligence doctrine four commercial law problems
    Lloyd's Maritime and Commercial Law Quarterly, 2017
    Co-Authors: James Goudkamp
    Abstract:

    The law of contributory Negligence is often treated as an afterthought by academics. This tendency is particularly pronounced in the sphere of commercial law, apparently on the assumption that the contributory Negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory Negligence in the commercial law setting is particularly underdeveloped. The goal of this article is to advance learning with respect to the contributory Negligence doctrine by engaging with four issues that arise in relation to it in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority, with the result that apportionment for contributory Negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory Negligence. I. INTRODUCTION The law of contributory Negligence, while often treated cursorily in textbooks and university courses, is of immense practical significance. As WVH Rogers put it, “[c]ontributory Negligence is a core element in tort law in England … [It] is of considerable, day to day importance”. 1 Paradoxically, the impact of this area of the law has increased considerably since the abrogation of the common law all-or-nothing

  • contributory Negligence in practice
    New Law Journal, 2016
    Co-Authors: James Goudkamp, Donal Nolan
    Abstract:

    In this article we report the results of an empirical study of 368 first instance decisions on the contributory Negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions considered were: how often a defendant's plea of contributory Negligence was successful; and by how much a claimant's damages were reduced when a finding of contributory Negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant’s age; the claimant’s gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory Negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine's operation.

  • apportionment of damages for contributory Negligence appellate review relative blameworthiness and causal potency
    Edinburgh Law Review, 2015
    Co-Authors: James Goudkamp
    Abstract:

    Apportioning damages for contributory Negligence is bread and butter work of trial courts throughout the United Kingdom. Both contributory Negligence and apportionment are very frequently in issue in Negligence cases and, when they are, they are often key points in dispute. It is relatively rare, however, for the law in this area to be dealt with at any length on appeal. There are various possible causes of this situation, one of which is the well-established principle that appellate courts should disturb findings of a trial judge in relation to contributory Negligence or apportionment only where those findings are clearly wrong. Jackson v Murray is, therefore, an important case. It is the first occasion on which the Supreme Court has engaged with this part of the law other than in passing. The decision casts light on several issues in the law of contributory Negligence and apportionment. It also raises some questions.

Donal Nolan - One of the best experts on this subject based on the ideXlab platform.

  • contributory Negligence in practice
    New Law Journal, 2016
    Co-Authors: James Goudkamp, Donal Nolan
    Abstract:

    In this article we report the results of an empirical study of 368 first instance decisions on the contributory Negligence doctrine handed down in England and Wales between 2000 and 2014. The two central questions considered were: how often a defendant's plea of contributory Negligence was successful; and by how much a claimant's damages were reduced when a finding of contributory Negligence was made. We also considered the extent to which the answers to these questions depended on the following variables: the claimant’s age; the claimant’s gender; the type of damage suffered by the claimant; the contextual setting of the claim; and the year of the decision. Our study uncovered several important truths about the contributory Negligence doctrine hidden in this mass of case law, some of which cast significant doubt on the accuracy of widely held views about the doctrine's operation.

  • Negligence and human rights law the case for separate development
    Modern Law Review, 2013
    Co-Authors: Donal Nolan
    Abstract:

    A number of judges and academics have argued in favour of the convergence of Negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of Negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and Negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in Negligence law. It is also argued that convergence would undermine the coherence of Negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.

Mohd Khair, Siti Khadijah - One of the best experts on this subject based on the ideXlab platform.

  • Konsep liabiliti dan pemberian pampasan gantirugi dalam kemalangan jalan raya menurut perundangan Islam
    UUM College of Law Government and International Studies, 2019
    Co-Authors: Mohd Khair, Siti Khadijah
    Abstract:

    The aspects of liability and compensation are key point in discussing the issue of Negligence in road traffic accidents. This article aims to analyze the concept of liability in road accidents in accordance with Islamic law by focusing on Negligence using a qualitative approach. Dhaman or a compensation of damages is a very broad title but this study will emphasize the specific principles and approaches to the aspect of collision on road traffic within the Islamic law. The form of the study uses a library study to analyze the concept of liability in cases of collisions based on Al-Quran, sunnah, ijma’ and qiyas with relating to the application of this concept for the Negligence fault resulting in collisions on road accidents. The research outcome shows that the 'causal' principle in Islamic law is very clear of its application and its relevance in determining the liability of either a case of collision which is occurring on the road, ocean or in air. The concept of liability also applies to determine the liability of Negligence and awarded compensation by the parties involved in constructing road structures, bridges, tunnels and others which associated with the road if the liability is not upon the innocent and negligent drivers

  • Konsep liabiliti dan pemberian pampasan ganti rugi dalam kemalangan jalan raya menurut perundangan Islam
    UUM College of Law Government and International Studies, 2019
    Co-Authors: Mohd Khair, Siti Khadijah, Md Dahlan, Nuarrual Hilal, Wahab Harlida
    Abstract:

    The aspects of liability and compensation have been key points when discussing the issue of Negligence in road traffic accidents. This article aims to analyze the concept of liability in road accidents, in accordance to Islamic law, that focuses on Negligence by using a qualitative approach. The application of ‘dhaman’ or the compensation of damages, is a broad concept that will be examined in this study. Furthermore, this study will review the specific principles and approaches on collisions of road traffic within the Islamic law. The methodology carried out employs the use of library study to analyze the concept of liability in cases of collisions, based on the Al-Quran, sunnah, ijma’ and qiyas with regards to the application of ‘dhaman’ on the Negligence that have resulted in collisions from road accidents. The research outcome suggests that the ‘causal’ principle in Islamic law is very clear on its application and relevance in determining the liability of either a case of collision that has occurred on the road, ocean or in air. The concept of liability is also applied to determine the liability of Negligence and awarded compensation by the parties that are involved in constructing the roads, bridges, tunnels and other structures that are associated with the road, if the liability does not fall upon the innocent and negligent drivers

Susan H Winn - One of the best experts on this subject based on the ideXlab platform.

  • assessing and credentialing standards of care the uk clinical Negligence scheme for trusts cnst maternity
    Best Practice & Research in Clinical Obstetrics & Gynaecology, 2007
    Co-Authors: Susan H Winn
    Abstract:

    The Clinical Negligence Scheme for Trusts (CNST) provides NHS trusts with a set of risk management standards for maternity services. These standards are designed to act as a framework, bringing focus to the clinical risk management procedures adopted by maternity services, and to contribute to the development and implementation of clinical governance, thereby improving patient care. Both the Royal College of Obstetricians and Gynaecologists (RCOG) and the Royal College of Midwives (RCM) have endorsed the standards because of their potential to benefit clinical care. By improving clinical risk management procedures within maternity units, the standards are ultimately intended to reduce the level of clinical Negligence claims. Assessments against the CNST Maternity Clinical Risk Management Standards are currently conducted by Det Norske Veritas Ltd (DNV) on behalf of the NHS Litigation Authority (NHSLA) to ensure that members' contributions reflect their standards of clinical risk management. Although the claims data have not been collected on a consistent basis and are too immature to provide conclusions in an area notorious for its long tail, it does indicate that there has been a fall in the number and cost of maternity claims as a percentage of total clinical Negligence claims reported to the NHSLA since the inception of CNST. This chapter examines whether there is evidence that the standards have had a measurable effect on clinical Negligence claims.

Robert L Rabin - One of the best experts on this subject based on the ideXlab platform.

  • dov fox on reproductive Negligence a commentary
    Social Science Research Network, 2017
    Co-Authors: Robert L Rabin
    Abstract:

    This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive Negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case for a newly recognized tort of reproductive Negligence that embraces all of these categories. My commentary proceeds as follows. From a historical perspective, Part I attempts to locate his claim for recognition of a more expansive version of recovery for stand-alone intangible harm in currently accepted tort duties. From a liability perspective, while finding much to be admired in this proposed new theory of recovery, Part II questions whether it is workable to view reproductive Negligence as a single pathway rather than three distinct routes to recognizing new tort rights. And finally, from a damages perspective, Part III draws on expansive themes in other areas of recovery for intangible harm to suggest additional foundational support for Fox’s effort to push the frontier of recovery for intangible harm into new territory.