WHOSE FAULT IN AN AGING WORLD?: COMPARING DEMENTIA-RELATED TORT LIABILITY IN COMMON LAW AND CIVIL LAW JURISDICTIONS

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.