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

Research output: Contribution to journalArticleResearchpeer-review

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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civil law
common law
dementia
liability
jurisdiction
caregiver
paternalism
immunity
jurisprudence
mental illness
incidence
autonomy
Japan
reform
Law
health
economics

Cite this

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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. Behaviorssymptomatic of dementias, such as wandering, potentially expose sufferers to increasedlikelihood of experiencing harm or causing harms to others. Yet what jurisprudence andcase law exists on the issue of tortious liability of people with dementia is largely derivedfrom the broader principles governing tortious liability of those with mental illness orotherwise impaired capacity. Those principles are themselves problematic, reflectingabsolutist models of either personal liability (common law jurisdictions) or statutorypersonal immunity accompanied by imposition of delegated liability on caregivers (civillaw jurisdictions), rather than a more nuanced model capable of reflecting the fluctuatingnature of capacity in people with dementia, and the variety of models of care arrangements.Similarly, those principles fail to adequately address tensions between paternalism andindividual autonomy. This Article provides a comparison of the various models of personalor caregiver liability found in a number of key jurisdictions (primarily Japan and the UnitedStates) and offers some suggestions for jurisdictions considering legal reform in thisincreasingly critical area.",
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Whose Fault in an Aging World?: Comparing Dementia-Related Tort Liability in Common Law and Civil Law Jurisdictions. / Ryan, Trevor; Bonython, Wendy Elizabeth.

In: Washington International Law Journal , Vol. 27, No. 2, 04.2018, p. 407-448.

Research output: Contribution to journalArticleResearchpeer-review

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