Search

The UN Convention on the Rights of the Child (CRC) provides that children require 'special safeguards and care, including appropriate legal protection' (Preamble). In recent years various attempts have been made by Scottish lawmakers to safeguard and promote children's rights across a range of legal fields. However, the field of delict (termed "tort law" in many jurisdictions) has been excluded from the process of mainstreaming children's rights in domestic law. Most of the contemporary litigation in the field is about liability for negligence (i.e., unintentional wrongdoing). In negligence proceedings, children are typically victims seeking redress from adults through the judicial system following childhood injury. Using Scotland as a case study, this article examines legal reasoning in what are termed "childhood negligence proceedings". Drawing on the jurisprudence of the Committee on the Rights of the Child and wider literature, the article raises concerns about both the substance and established practices of the law. In particular, an absence of judicial engagement with children and research about childhood development is observed. Consideration is given as to what might be the nature of the obligations imposed upon states in this field of law by Articles 1 (age), 2 (non-discrimination), 3 (best interests), 6 (life, survival and development) and 12 (voice) of the CRC. Two overarching questions persist: first, can findings of negligence or contributory negligence against children ever be justified? And secondly, if so, what should be the model for imposing childhood liability? As Scotland fully incorporates the CRC in domestic law, the article concludes by framing a series of questions directed towards creating new knowledge and developing new understanding capable of transforming the child's position in delict/tort law. [ABSTRACT FROM AUTHOR]

Copyright of Angle Health Law Review is the property of Angle Publishing Co., Ltd. and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The distinction between the criminal fault elements of recklessness and negligence is one of Anglo-American criminal law's key distinctions. It is a distinction with practical significance, as many serious crimes require at least recklessness and cannot be committed negligently. The distinction is standardly marked by awareness. Recklessness requires awareness that one's conduct carries a risk of harm. Negligence only requires that one ought to have been aware that one's conduct carried such a risk, even if one was in fact unaware of this. But should the recklessness/negligence distinction be marked by awareness of risk, or by something else? Does a defendant's awareness of risk really have the normative significance to mark such a distinction? In this paper, I answer these questions by discussing a challenge to this 'standard account' of the recklessness/negligence distinction raised by the work of Antony Duff, who defends an alternative, non-awareness-based model of the recklessness/negligence distinction. I will argue that, although Duff's alternative model fails, seeing how it goes wrong helps us see how awareness genuinely does have the right kind of normative significance to mark the distinction between recklessness and negligence. [ABSTRACT FROM AUTHOR]

The United States Court of Appeals for the 11th Circuit recently made a decision in the case of McCluskey El v. Celebrity Cruises, Inc. The court affirmed the district court's decision to dismiss the case, stating that the appellant was adequately informed of the contract's terms and that the pandemic did not justify tolling the statute of limitations. The court emphasized the importance of reasonable communication and the rarity of granting an equitable tolling remedy in maritime tort actions. This decision provides clarity and guidance for future cases involving equitable tolling. [Extracted from the article]

Tort law has failed to respond to the intolerably high incidence of rape and sexual assault in the United States. By any measure, there is glaring disparity between the paltry number of tort claims brought by rape victims and the vast number of sexual assaults committed each year. Among the multiple reasons.for the underutilization of tort law is the inadequacy of traditional doctrinal frameworks for litigating such cases, particularly the assumption that a rape victim must bring an intentional tort claim to recover against an offender. The labyrinthine doctrine of consent that looms large in intentional tort cases has deterred plaintiffs from suing and has made it diffcult for plaintijjk to prevail. even when a defendant's sexual conduct is unwelcome and harmful. Our solution is to allow tort plaintiffs the option of bringing a negligence claim against the omnder, centering the litigation on the unreasonableness of the defendant's conduct rather than the consent of the plaintiff Allowing a negligence claim for rape responds to the countless date- and acquaintance-rape cases in which the defendant's unreasonable conduct has undermined the plaintiff's ability to consent freely-creating a risk of coercion--and to those cases in which a defendant has placed his interests above the plaintiffs by taking a risk that the plaintiff has not in fact consented. The option of negligence will allow juries to evaluate contested cases in a straightforward fashion and will provide a more secure route to adequate compensation, particularly if courts determine that such negligence claims are not subject to the "intentional acts" exclusion in insurance contracts. Courts will jace a variety of doctrinal questions in litigating such negligence-based rape claims, including the proper categorization of the injury as physical versus emotional harm and the availability Of the contributory/comparative negligence defense. Because affording such a negligence option would not preclude plaintillk.from also asserting intentional tort claims, it is important that courts not view such claims as mutually exclusive and that plaintiffs be given the opportunity to argue in the alternative. [ABSTRACT FROM AUTHOR]

Road traffic is present in every person's life, considering that, at various times, we can all become participants to it. Alongside the benefits that road traffic provides us with, it is also presenting risks that are indulged in our societies. Even though the legislator has set rules to ensure the safety of traffic participants, the frequent violation of these rules, leads to serious injuries and even death of some individuals. Thus, traffic offenses are some of the most frequent crimes in relation to which Romanian courts are notified about. In the category of these offences, a primary role is played by the subjective element that can provide major differences in the legal qualification of the deed, respectively in the sphere of criminal liability. It has become a notorious fact that, from a legal point of view, that indirect intent can barely be delimitated from foreseeable fault, an issue that transposes itself also in the area of traffic incidents. Until recently, the traditional view was that all traffic accidents are committed with criminal negligence rather than intent. However, if we take into account the substantial evolution of traffic starting with the increasing number of participants, the evolution of speed, the capabilities of the vehicles today up to the frequency of the gross violation of traffic rules, we conclude that a paradigm shift is needed. In extreme situations, indirect intent must also be taken into consideration. The difference in the sanctioning of indirect intent and foreseeable fault makes the delimitation between the two in road traffic accidents a paramount issue. The present study tackles precisely this issue of the distinction between indirect intent and foreseeable fault in road traffic accidents by trying to clarify some controversial hypothesis by referring to relevant studies and a few eloquent examples of Romanian case law. [ABSTRACT FROM AUTHOR]