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



Purshouse, Craig ORCID: 0000-0002-0432-119X
(2015) Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law? Torts Law Journal, 22 (3). 226 - 249.

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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.

Item Type: Article
Uncontrolled Keywords: negligence, tort law, autonomy, duty of care, law
Depositing User: Symplectic Admin
Date Deposited: 22 Apr 2016 14:08
Last Modified: 26 Apr 2022 10:28
URI: https://livrepository.liverpool.ac.uk/id/eprint/3000513