Abstract
Recently in Shaw v Kovac, the Court of Appeal seemed to have rejected a standalone injury to autonomy (ITA) as actionable in negligence, in an informed consent case. In this article, I argue that Shaw can be explained away, and that English law recognizes ITA as actionable in a series of cases, some of which – Bhamra, Tracey, and Yearworth – were not hitherto understood to do so. However, the under-theorization in the cases leads to inconsistencies. Like cases (Rees/Yearworth; Chester/Tracey) are not treated alike; ITA is misunderstood to be about ‘religious offence’ (Bhamra) and property loss (Yearworth) and worse still, the more serious type 2 ITA (Rees) gives rise to a weaker remedy (of exceptional nature aside) than the less serious type 1 injury (Chester). A better understanding of the different manifestations of ITA will lead to results which are both more consistent and more justified on the merit.
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Tsachi Keren-Paz, Compensating Injury to Autonomy in English Negligence Law: Inconsistent Recognition, Medical Law Review, https://doi.org/10.1093/medlaw/fwy009. Published: 10 April 2018.
First posted 2018-04-14 06:37:21
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