This is the first of three chapters dealing in depth with directors’ duties, following the overview provided in Chapter 10. The duties are divided into two themes: duties of care, skill and diligence, and duties of loyalty and good faith. The focus in this chapter is on the duties of care, skill and diligence. These duties are imposed by the common law, equity and the Corporations Act. This chapter commences with the common law and equitable foundations of the duty of care, skill and diligence, and considers their adoption into statute and the current law. It examines the safe harbour provided by the business judgment rule, and recent discussion on the scope and application of that rule. This chapter examines the ability of directors to delegate their duties and to reasonably rely on the information or advice provided by certain types of persons. Finally, the chapter considers the requirements imposed on directors and officers as a company approaches insolvency. The chapters which follow then consider the duties of loyalty and good faith.

This chapter explores safeguarding as a duty on tennis sport governing bodies (SGBs) and tennis academies in respect of their athletes, whether junior or senior. The chapter considers safeguarding as a duty of care, the violation of which gives rise to tort-based liability. It looks at the various instruments and codes adopted by tennis SGBs, as well as by national tennis federations, including also their monitoring processes. The chapter explores how these processes are enforced with a view to limiting exposure to risks present or future. The chapter also considers health and safety as part of the duty of safeguarding and goes on to point out legal consequences for failure to meet safeguarding obligations.

Chapter 19 looks at two landmark decisions that were issued after the submission of the full manuscript of this book for publication: the Advisory Opinion of the International Tribunal for the Law of the Sea on climate change and marine protection, and the judgment of the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz and Others v Switzerland. The authors situate these decisions within the broader context of climate litigation, examining their implications for future cases and drawing connections to the themes explored in other chapters. They demonstrate how these decisions both reflect and advance emerging best practice in climate jurisprudence, potentially inspiring further innovation based on science and rigorous legal reasoning.

Chapter 6 on Separation of Powers offers a comprehensive exploration of how the balance of power between the judiciary and other branches of government plays out in climate litigation. The authors critically analyse key cases where these doctrines have been invoked, shedding light on how these doctrines shape the courts’ approach to climate cases. They underscore the significant variation in how this issue is dealt with across jurisdictions, acknowledging the diversity of constitutional and legal frameworks globally. Despite this diversity, the authors distil an emerging best practice where courts are increasingly recognising their crucial role in safeguarding fundamental rights and constitutional values in the context of climate change. This recognition is not a one-directional or universal trend but a nuanced evolution detectable across various jurisdictions and legal systems.

Chapter 9 examines the principle of the duty of care in the context of climate litigation. The authors explore how this principle has been invoked in a growing range of jurisdictions, in different ways, to hold governments and corporations accountable for their respective contributions to climate change. By analysing judicial decisions in prominent cases such as Urgenda and Milieudefensie in the Netherlands, Neubauer in Germany, and Notre Affaire à Tous in France, the authors explore the potential of the duty of care principle to compel more ambitious climate action in pending and future cases. The emerging best practice they identify suggests a growing willingness of courts to recognise a duty of care for governments and corporations towards citizens in relation to climate change.

Talent Management: Selecting and Preparing Leaders for Global Assignments examines how organizations select and prepare global leaders for effective assignments. An effective mobility program allows development of global leaders. The chapter identifies the personal characteristics for an international assignee and conditions necessary for an effective international assignment. Family responsibilities as well as a spouse’s/partner’s career and employment issues continue to be reasons candidates turn down assignments. To increase flexibility, multinationals have increased the use of “flexpatriates” in nonstandard international assignments. Effectiveness is the ability to live and work effectively in the cultural setting of an assignment. Effectiveness is a function of Professional expertise, Adaptation, Intercultural interaction, and Situational readiness and is reflected in a formula: E = f (PAIS). The international assignment of female executives has become an important consideration as more women have graduated from business schools and are in line for senior management and international careers. Training should be a function of the degree of cultural exposure that will be experienced. Culture shock, acculturative stress, can be a reason for failure to adapt to the host country. Duty of Care and an organization’s responsibilities to employees are discussed.

Common law damages cannot be awarded in respect of a purely equitable wrong such as breach of trust or breach of fiduciary duty. Instead, a compensatory remedy has developed in equity’s exclusive (or inherent) jurisdiction: equitable compensation. This remedy originated in cases involving breach of trust, although for many years it was not explicitly recognised as a compensatory remedy and was known instead as one of the forms of ‘account’ that a trustee must make when a breach of trust occurs. It is therefore necessary to have a brief look at the main forms of account, which are still used today.

This chapter provides an overview of the legal and medical principles that underpin medical negligence litigation, including the definition of medical negligence, what constitutes a psychiatric injury, the psychiatric evaluation and practical issues which commonly arise, when undertaking a psychiatric assessment in the context of clinical negligence litigation. After criminal negligence, the elements of civil negligence are set out including duty of care and standard of care. Legal concepts of causation and psychiatric injury differ from medical or scientific causation. The professional obligations on the forensic psychiatry as expert are to be neutral and objective, to obtain and document consent, to structure how instructions are taken and how reports are written in the light of court guidelines. As with all areas of medicine, the expert must comply with the ethical, professional and legal obligations of doctors. Patient privacy and confidentiality of personal health information must be protected. Most, if not all, patients referred by their solicitors, or by the defendant medical indemnity body, will already feel betrayed and let down by the medical profession. They will be fearful and distrustful. On the other side, there is a clinician who fears reputational damage.

Families continue to provide immense financial and psychosocial support to their student age children. ‘Estranged students’ and those who are themselves carers suffer financial, academic and social obstacles to a successful university experience. Parents now expect greater participation in the lives of their student children, as financial realities empower them to influence their children’s choices. From age 18 students are deemed ‘adults’, but without adult rights to an independent student loan, or legal compulsion on their parents to provide finance. Parents have little feedback or power over the resource they are asked to finance. Communication between universities and parents has attracted controversy. Universities are experimenting with ways to clarify how nominated carers can be consulted about students at risk. Families may become the unsupported carers when a student has left university in an unplanned way, as well as when the course comes to an end. The chapter considers the value of developing a ‘leavers’ programme’, analogous to freshers weeks, as well as a specific package of supports for students who leave in an unplanned way.

In recent years, fiduciary law has moved toward the center of scholarly attention in the common law world.1 In spite of its “elusive” nature,2 enough instances of fiduciary relationships occur across a wide variety of legal areas that many – with good cause – describe it as a distinctive field.3 Courts as well as scholars in common law jurisdictions deal concepts and ideas concerning fiduciary law back and forth.4 Although civil law countries have no tradition of the trust as a legal institution,5 courts and scholars alike term relationships based on some kind of personal or professional trust “fiduciary.”6 German law subjects guardians,7 trustees in bankruptcy,8 attorneys,9 and others to a specific set of fiduciary duties, the most important of which is a duty of loyalty.10 France has introduced “la fiducie,” a substitute for the common law trust.11 Indeed, civil law countries have long combined property and contract law in order to fashion substitutes for the common law trust. Contract-based Treuhandverhältnisse – that is, relationships of trust – have been a staple part of the German legal discourse for several decades, if not centuries.12 And in recent years, the trust as a legal institution is gaining ground in civil law jurisdictions, following national recognition of the Hague Trust Convention by countries such as Italy and the Netherlands.13

To establish that a defendant is liable in negligence, the plaintiff must establish that a duty of care is owed, that the duty has been breached, and that the breach has caused damage within the scope of liability. The concept of duty of care can be the most challenging to establish because it is difficult to define it in a meaningful way. At present, where a set of facts requires us to consider whether a duty of care is owed, the following general approach is used:

1. (1) Determine whether there is a relevant precedent establishing that a duty of care is owed to a person in the plaintiff’s position by a person in the defendant’s position for this type of harm.

2. (2) If there is no established precedent (in other words it is a ‘novel’ case), balance the ‘salient’ features of the relationship (the multi-factorial approach).

   This chapter will consider the general principles of duty of care, some of the established categories of relationships of duty, as well as duty of care in novel cases.

Once the plaintiff has established that the defendant owed him or her a duty of care, the next question is whether the defendant breached that duty of care. In its broadest terms, breach is about whether the defendant has engaged in negligent conduct, which can be understood as failing to take the precautions against certain risks of harm that the reasonable person, in the circumstances, would have taken.

So how do we work out which precautions the reasonable person would have taken in the circumstances? This analysis has two main parts:

1. (1) A court determines the qualities of the reasonable person against whom the behaviour of the defendant will be compared.

2. (2) The court then decides what that reasonable person would have done if placed in the same circumstances the defendant was in.

   What the defendant actually did or did not do is then compared to that standard of expected carefulness. If the defendant’s conduct was less careful than what the court decides the hypothetical reasonable person would or would not have done, the defendant is said to have fallen below the standard of care expected of them and will have breached their duty of care.

Chapter 2 explained the main areas of the law, including the differences between civil and criminal law. This chapter will focus on one of the main parts of the civil law that is relevant for nurses: the law of negligence. The law of negligence allows a person to bring legal proceedings against another person to correct a wrong or harm that the other person has done to them. Usually the person who has been harmed (the plaintiff) will seek payment of money (called ‘damages’) in compensation for their injury from the person whose act or omission caused the harm (the defendant).

This chapter will outline the key parts of the law of negligence, with a particular focus on the special rules that have developed in relation to health-care professionals, including nurses. By understanding how the law applies to things nurses do that can cause people harm, it should be possible for nurses to better avoid acting negligently.

In Smith v. Van Gorkom, the Delaware Supreme Court held that corporate directors owe a duty of care to act on “an informed basis, in good faith, and the honest belief that the action taken was in the best interest of the company.” This holding shocked boardrooms everywhere by subjecting directors to the threat of personal liability for gross negligence in decision-making. While legislatures moved swiftly to allow corporations to adopt exculpation clauses relieving directors from these heightened standards, Van Gorkom remains a high-water mark in holding directors liable for their actions. Lua Yuille’s feminist judgment expands Van Gorkom’s reach, focusing on the homogeneity of the all-white male board and resulting in lack of diverse qualities and perspectives. She takes the revolutionary step of only affording the business judgment rule presumption to the decisions of an appropriately diverse board. In her rewritten opinion, the majority’s cramped duty of care is expanded to encompass all stakeholders, not merely shareholders. Virginia Harper Ho contextualizes the feminist judgment and explores possibility of a faith-centered feminism and its relationship to stakeholder-centric governance.