Band 10, Heft 3

Codification of tort law is a rare phenomenon in the common law world. However, building on earlier precedents, in the early 2000s, Australian jurisdictions embarked on a project of placing important general principles of negligence law into legislation. This article considers these provisions and argues that they can be considered as an attempt to codify certain parts of the law of tort. Both the process by which this codification took place, and the contents of the ‘codes’, provide interesting comparative material for civilian jurisdictions with codified tort law as well as for common law systems.

Over a century, common law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (unreasonable conduct, harm causation, duty), the test and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element. Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 SCC’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson , it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

After many years of criticism of the medical malpractice system based on negligence, Belgium introduced a law on medical accidents in March 2010. This law created a Medical Accidents Fund. Under this two-track system the victim of a medical accident has the choice to file a claim before the court or to seek compensation from the Fund. The Law on Medical Accidents has four objectives: (1) to create a Fund with a simple and fast procedure that is cost-free to access, (2) to channel and centralise all medical accident claims to the Fund, and to develop a prevention strategy, (3) to compensate more victims by introducing a personal right to compensation for medical accident victims without the need to consider liability, and finally, (4) to achieve a balanced budget. A medical accident without liability can be defined as an accident caused by healthcare which does not lead to the liability of a caregiver, does not result from the patient’s health condition and causes abnormal damage to the patient. The damage is abnormal if it was not supposed to occur given the current state of scientific knowledge, the patient’s health condition and its objectively predictable evolution. Following analysis of the new law, this study shows that it has created a single, central point of contact that is easily accessible and generally understood by medical accident victims. On average fifty new cases a month are submitted to the Fund. In a reasonable number of cases to date, liability of the caregiver has been accepted by the Fund. However, the Fund is rather strict in awarding no-fault compensation for medical accidents without liability. It remains to be seen whether this interpretation can resist the test of judicial review.

This article approaches corporate reputation from an English law perspective. It argues that corporate reputation is at least as important as individual reputation, as it is not only vital for the health and prosperity of businesses themselves (whether large or small), but also for the communities within which they operate. Following analysis of conflicting jurisprudence from the European Court of Human Rights, which has led to a lack of clarity within English law, this paper contends that business reputation should be subsumed within the concept of property. Such an approach would then enable businesses to avail themselves of a positive right to the protection of reputation, as property, under Article 1 Protocol 1 of the European Convention of Human Rights.