Whose Fault in an Aging World?

Comparing Dementia-Related Tort Liability in Common Law and Civil Law Jurisdictions

Trevor RYAN, Wendy BONYTHON

Research output: Contribution to journalArticle

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

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

Cite this

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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.

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

Research output: Contribution to journalArticle

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