Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law?

(2015) 22 Torts Law Journal

Posted: 20 Feb 2016

See all articles by Craig Purshouse

Craig Purshouse

University of Liverpool - School of Law & Social Justice

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

Suggested Citation

Purshouse, Craig, Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law? (2015). (2015) 22 Torts Law Journal, Available at SSRN: https://ssrn.com/abstract=2733208

Craig Purshouse (Contact Author)

University of Liverpool - School of Law & Social Justice ( email )

Brownlow Hill
Liverpool, L69 3BX
United Kingdom

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