England and Wales

Developments in tort law in England and Wales in 202

Causation in Cases of Evidential Uncertainty: Juridical Techniques and Fundamental Issues

This paper reviews from a comparative legal perspective the range of juridical techniques that have been developed in different legal systems to address perceived problems of uncertain alternative causation. It finds that the process of development has generally proceeded in an ad hoc and unprincipled fashion, without regard for overall coherence. It argues for a more principled legal approach in which the appropriate legal response (full liability, proportional liability or no liability) is adopted on the basis of a ranking of the different categories of cases in which problems of causal uncertainty can arise, reflecting the strength (or weakness) of the arguments in favor of the imposition of (at least some) liability

Yangge Dance: The Rhythm of Liability for Medical Malpractice in the People\u27s Republic of China

This paper summarises the development of liability for medical malpractice in the People\u27s Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in the same direction may be apprehended in the future. Yangge Dance, a traditional Chinese folk dance, provides an apt simile for this process of development, with its initial move of three steps forward followed by two steps back. The dance is concluded by two sideways steps—first to the right, then to the left—which may be taken to refer to the constant interplay between the two concurrent liability systems—one administrative, the other tortious—which is explored in its various dimensions in the article

The Borderlines of Tort Law in England and Wales

SummaryQUESTIONSTRACING THE BORDERLINESA. DISTINCTION BETWEEN TORT AND CONTRACT1) Justification for Distinguishing Tort from Contracta) Historical DistinctionThe categories contract and tort are not to be found in the early common law. It was not until the end of the 17th century that they began to emerge and that the distinction between them came to have significance, initially for primarily procedural reasons. With the abolition of the old ‘forms of action’ in the mid-19th century, the question of classification had to be addressed more systematically and on the level of substance, and various theoretical analyses of the distinction between the two causes of action began to emerge.b) Theories Justifying Continued DivisionThe classic justification, under the ‘will theory’, is that contractual duties are based on voluntary obligations: it is for the law to set out the prerequisites for the formation of a contract and to enforce it but it is for the parties to negotiate its substantive terms. Tortious obligations, on the other hand, are coercive: they are imposed by law and not on the basis of agreement between the parties.In practice, however, the laissez-faire theory of contract is only true as a starting point. First, because terms may be implied into contracts by the courts or the legislature and some terms that have expressly been negotiated by the parties may be struck down. Indeed, entire agreements may be struck down on the grounds, inter alia, of illegality, incapacity, mistake, duress, misrepresentation, frustration and restraint of trade. Second, much judicial ingenuity is also expended on the interpretation of the parties’ agreement so as to avoid unjust consequences. As a result of the contra proferentem rule, for example, exemption clauses are construed strictly against the party who seeks to rely on them. Third, the classification of terms also allows courts some latitude for intervention. This is the case, for example, with ‘innominate terms’, intermediate terms that may transpire to be either conditions or warranties on the ex post application of the ‘consequences of the breach’ test