Keren-Paz Tsachi
Professor of Private Law, School of Law, Keele University, Staffordshire, England.
Med Law Rev. 2018 Nov 1;26(4):585-609. doi: 10.1093/medlaw/fwy009.
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.
