Skip to main content

Research Repository

Advanced Search

Compensating injury to autonomy in English negligence law: Inconsistent recognition

Compensating injury to autonomy in English negligence law: Inconsistent recognition Thumbnail


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.

Citation

Keren-Paz, T. (2018). Compensating injury to autonomy in English negligence law: Inconsistent recognition. Medical Law Review, 26(4), 585-609. https://doi.org/10.1093/medlaw/fwy009

Journal Article Type Article
Acceptance Date Feb 6, 2018
Online Publication Date Apr 10, 2018
Publication Date Nov 1, 2018
Publicly Available Date May 26, 2023
Journal Medical Law Review
Print ISSN 0967-0742
Publisher Oxford University Press
Volume 26
Issue 4
Pages 585-609
DOI https://doi.org/10.1093/medlaw/fwy009
Keywords actionable damage, autonomy, informed consent, negligence, reproductive autonomy
Publisher URL https://doi.org/10.1093/medlaw/fwy009

Files






Downloadable Citations