Compensating Injury to Autonomy in English Negligence Law: Inconsistent Recognition. (10th April 2018)

• Record Type: Journal Article
• Authors: Keren-Paz, Tsachi
• Is Part Of: Medical law review. Volume 26:Number 4(2018)
• Page Start: 585
• Page End: 609
• Publication Date: 2018-04-10
• Subjects: Actionable damage -- autonomy -- informed consent -- negligence -- reproductive autonomy; Medical laws and legislation -- Great Britain -- Periodicals; Medical jurisprudence -- Periodicals; Jurisprudence -- Periodicals; Legislation, Medical -- Periodicals; Medical jurisprudence; Medical laws and legislation; Great Britain; 344.41041
• DOI: 10.1093/medlaw/fwy009
• Languages: English
• ISSNs: 0967-0742

Abstract

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.