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Encyclopedia > Loss of right in English law
English Tort law
Part of the common law series
Negligence
Duty of care
Standard of care
Bolam Test
Breach of duty
Causation
Breaking the chain
Acts of the claimant
Remoteness
Professional negligence
Loss of chance
Loss of right
Res ipsa loquitur
Eggshell skull
Defences to negligence
Trespass to property
Defamation
Strict liability
Vicarious liability
Rylands v. Fletcher
Nuisance
Other areas of the common law
Contract law  · Property law
Wills and trusts
Criminal law  · Evidence

In the English law of tort, loss of right is a new heading of potential liability arising as a matter of policy to counteract limitations perceived in the more traditional rules of causation. Image File history File links Scale_of_justice. ... This page is a candidate for speedy deletion. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... In law, negligence is a type of tort or delict that can be either criminal or civil in nature. ... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... The Bolam Test In Sidaway v Governors of Bethlem Royal Hospital, Lord Scarman said: The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion... In tort, there can be no liability in negligence unless the claimant establishes both that he or she was owed a duty of care by the defendant, and that there has been a breach of that duty. ... In the English law of tort, causation proves a physical link between the defendant’s negligence and the claimant’s loss and damage. ... In the English law of the tort of negligence, breaking the chain refers to the test of causation because, even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act (or novus actus interveniens) breaks the causal link between that... In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. ... Res ipsa loquitur is a legal term from the Latin meaning literally, The thing speaks for itself. The doctrine is applied to claims which, as a matter of law, do not have to be explained beyond the obvious facts. ... The eggshell skull rule (or thin-skull rule) is a legal doctrine used in both tort law and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury to another person, even if the victim suffers unusual damages due to a pre... In English and American law, and systems based on them, libel and slander are two forms of defamation (or defamation of character), which is the tort or delict of making a false statement of fact that injures someones reputation. ... Strict liability is a legal doctrine in tort law that makes a person responsible for the damages caused by their actions regardless of culpability (fault) or mens rea. ... Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate and can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory... Rylands v. ... Nuisance is a common law tort. ... A contract is a promise or an agreement that is enforced or recognized by the law. ... Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. ... The law of evidence governs the use of testimony (e. ... English law is a formal term of art that describes the law for the time being in force in England and Wales. ... This article or section does not cite its references or sources. ... In the English law of tort, causation proves a physical link between the defendant’s negligence and the claimant’s loss and damage. ...

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Loss of a right

Recent medical negligence cases suggest tacit recognition of a more rights-based approach to damage. Under this approach, claimants who cannot establish causation using the traditional "but for" rules may nevertheless recover if they can show that in failing to fully advise of the risks inherent in treatment, a defendant has deprived them of the right either to choose a more experienced doctor or to defer the date of the treatment. In Chester v Afshar (2004) UKHL 41 the claimant was advised by the defendant surgeon to undergo surgery which carried a small (1-2%) but unavoidable risk of a seriously adverse result inherent in the procedure and not dependent on any characteristics of the patient. The surgeon did not warn her of that known risk, and she suffered serious nerve damage which left her partially paralysed. There was no evidence of negligence in the surgery itself. The alleged breach of duty was the failure to warn of the risk and the claimant had to prove that "but for" the failure to warn her, she would not have had the surgery. Lord Hope said: “It is plain that the ‘but for’ test is not in itself a sufficient test of causation.” (para 72) but accepted: “…that a solution to this problem which is in Miss Chester’s favour cannot be based on conventional causation principles..” (para 81). Nevertheless, he thought that: “[t]he issue of causation cannot be separated from issues about policy.” (para 85) and questioned whether in the unusual circumstances of this case, justice required the normal approach to causation to be modified, given that the issue which had arisen in this case raised an issue of legal policy which a judge must decide. The general view is that patient autonomy must be respected which is why the law has imposed a duty on doctors to give comprehensive information so that the patient can make an informed choice as to whether to have the operation. If there are known risks, some might find the choice whether to consent easy, but others would find the choice difficult and would wish to consider all options before taking the decision. Not to enforce the duty to warn of known risks would render the duty useless in the cases where it might be needed most. Lord Steyn said at para 19 The plaintiff, claimant, or complainant is the party initiating a lawsuit, (also known as an action). ...

“… [I]t is a distinctive feature of the present case that, but for the surgeon’s negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion was very small. It could therefore be said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned.”

In general, it is not desirable to depart from established principles of causation, except for good reasons, the Lords held the right of autonomy and dignity justified a modification of the general rule in this case. (cf : Chappel v Hart (1998) 195 CLR 232 in Australia). Stevens argues that this decision is problematic. Suppose that a car being driven at an excessive speed is struck by a falling tree and a passenger is injured. It does not matter whether the risk of falling trees was foreseeable (e.g. because of prevailing weather conditions) that risk is not increased by driving too fast. The purpose of the rule imposing a duty to drive safely is to avoid traffic accidents not falling trees. In Chester v Afshar, the surgeon's breach of duty has not caused the patient to run any greater risk. If the purpose of the duty is solely to enable the patient to make an informed choice about whether to have the operation at all, the claimant's argument should fail. As Lord Hoffmann says at para 31:

"This argument is about as logical as saying that if one had been told, on entering a casino, that the odds on No 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino."

Although it is true that a patient may wish to take time to discuss the matter with family and friends and, possibly, seek a second opinion, the ultimate decision does not change the nature of the risk. It seems that the majority of the Lords wish to create an exception because the opportunity to reflect is itself deserving of respect.

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References

  • Cane, Peter. (1999). Atiyah’s Accidents, Compensation and the Law. Sixth edition, Chapter 5. Cambridge: Cambridge University Press. ISBN 0-521-60610-1
  • Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). Markesinis and Deakin's Tort Law. pp. 174-201. Oxford: Clarendon Press. ISBN 0-19-925712-4
  • Hart, H. L. A. & Honore, A. M. (1985). Causation in the Law. Oxford: Clarendon Press.
  • Luckham, Mary. "Informed consent to medical treatment and the issue of causation: the decision of the House of Lords in Chester v Afshar [2004] UKHL 41" [1]
  • Rogers, W. V. H. Winfield and Jolowicz on Tort, pp. 195-231. London: Sweet & Maxwell. ISBN 0-421-76850-9
  • Stevens, Robert. An Opportunity to Reflect [2]
  • Weir, Tony. (2002). Tort Law. Chapters 4 & 5. Oxford: Oxford University Press. ISBN 0-19-924998-9

 
 

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