Whose Fault in an Aging World?: Comparing Dementia-Related Tort Liability in Common Law and Civil Law Jurisdictions

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Abstract

Age-related dementias have been identified as a global health priority,
based on their rapidly rising incidence and associated economic burden. Behaviors
symptomatic of dementias, such as wandering, potentially expose sufferers to increased
likelihood of experiencing harm or causing harms to others. Yet what jurisprudence and
case law exists on the issue of tortious liability of people with dementia is largely derived
from the broader principles governing tortious liability of those with mental illness or
otherwise impaired capacity. Those principles are themselves problematic, reflecting
absolutist models of either personal liability (common law jurisdictions) or statutory
personal immunity accompanied by imposition of delegated liability on caregivers (civil
law jurisdictions), rather than a more nuanced model capable of reflecting the fluctuating
nature of capacity in people with dementia, and the variety of models of care arrangements.
Similarly, those principles fail to adequately address tensions between paternalism and
individual autonomy. This Article provides a comparison of the various models of personal
or caregiver liability found in a number of key jurisdictions (primarily Japan and the United
States) and offers some suggestions for jurisdictions considering legal reform in this
increasingly critical area.
Original languageEnglish
Pages (from-to)407-448
Number of pages42
JournalWashington International Law Journal
Volume27
Issue number2
Publication statusPublished - Apr 2018
Externally publishedYes

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