Principles of Tort Law

Automated Vehicles and Third-Party Liability: A European Perspective

“…55 In addition, the PLD establishes a duty to put into circulation products that are reasonably safe, taking into account all circumstances -not products that are absolutely safe. 56 In this regard, some national courts have referred to a risk-benefit analysis of the product's characteristics, taking into account the kind and the extent of the risks connected to the use of the product, the possibility that such risks materialize, the cost of additional safety measures and the benefits from the use of the product. 57 At the same time, safety is assessed by excluding any misuse of the product not reasonable under the circumstances.…”

Litigating labour

“…44 With this important point in mind, Professor Mulheron's recent paper, in which she identifies a number of scenarios that have attracted judicial consideration in English law post Bolitho, is particularly illuminating. 45 The scenarios she identifies include: where the peer professional opinion has overlooked that a clear precaution to avoid the adverse outcome for the patient was available; where there was a question of resources and conflicts of duty; where there was failure to weigh the comparative risks and benefits of the chosen course of conduct; where the accepted medical practice contravenes widespread public opinion; where the doctor's peer medical opinion cannot be correct when taken in the context of the factual evidence; where the doctor's expert medical opinion is not internally consistent; and where the professional opinion has adhered to the wrong legal test. 46 The two factors relating to peer professional opinion overlooking a clear precaution that could have avoided the adverse outcome for the patient, and the failure to weigh the comparative risks and benefits of a particular course of action, are highly relevant to the proceeding analysis concerning childbirth litigation.…”

“…72 To use Mulheron's example, this certainly seems to be a situation in which professional opinion overlooked a simple precaution that could, potentially, have avoided the adverse outcome for the patient. 73 An immediate criticism of this may reside in the fact that the law of negligence should not be too quick to endorse claimant expert testimony over and above that of the defence simply because it advocates a more cautious approach in a given situation. Holding doctors liable in childbirth cases because they do not opt to intervene at the first hint of anything untoward would be inimical to the exercise of professional discretion and would impose a duty beyond that of reasonableness.…”

“…12 While in theory the Bolitho 'gloss' could benefit claimants in some cases, it only has that effect if it is consistently and rigorously applied. The evidence suggests that the added string to a judge's bow by virtue of Bolitho has not always been deployed to useful effect, an issue which is particularly evident in respect of childbirth cases.…”