Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law?
(2015) 22 Torts Law Journal
Posted: 20 Feb 2016
Date Written: 2015
Abstract
Respect for individual autonomy is considered to be an important principle in bioethics and medical law. Appellate decisions such as Rees v Darlington Memorial Hospital NHS Trust and Chester v Afshar arguably indicate that lost autonomy could be a form of actionable damage in the tort of negligence and there has been a growing body of academic opinion that advocates the tort of negligence should protect an interest in autonomy. This article argues that such a course would be mistaken by demonstrating that recognition of this putative interest is inconsistent with current legal determinations and conceptual understandings as to what counts as actionable damage and when a duty of care should be imposed. As a result, it is argued that protecting a notional interest in autonomy would be problematic because it is difficult for the tort of negligence to do so in a coherent way without distorting established and cogent legal principles.
Keywords: negligence, tort law, autonomy, duty of care, law
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