New Forms of Damage in Negligence
| Published date | 01 January 2007 |
| Date | 01 January 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00626.x |
New Forms of Damage in Negligence
Donal Nolan
n
Although damage is an essential component of negligence liability,important extensions of the
categories of actionabledamage occur with little or no analysis or even acknowledgement of the
fact. In this article, considerationis given to a number of new forms of actionable damagewhich
appear either to havereceived recognition by the courts in recent years, or to be close to receiving
such recognition.The article is divided into three core sections, dealing with negligent imprison-
ment, wrongful conception and educational negligence. The principal conclusions are that
redress for negligent imprisonment is best achieved through recognition of imprisonment as
actionable damagei n negligence;that an unwanted pregnancy is a form of personal injury, albeit
an unusual one; that the conventionalsum award in wrongful co nceptioncas es is best analysedas
compensation for a diminution in the parents’autonomy; and that while untreated learni ng dis-
orders are now treatedby the courts as a form of personal i njury, in the absence of such a disorder
educational under-development ought not to be recognised as actionable damage in its own
right.
[T]ort law can be employed to protect whatever interests are deemed worthy of
protection in any particular society: the list of protected interests is not set in stone.
1
INTRODUCTION
That damage is an element of the tort of negl igence is not i n doubt: actionable
injury completes the cause of action, so that time begins to run for limitation
purposes only from the moment it occurs.
2
It seems strange, therefore, that this
essential component of negligence liability should be so widely ignored. Issues
concerning actionable damage are frequently repackaged as questions of duty or
causation, and important extensions of the categories of actionable damage take
place with little or no analysis or even acknowledgement of the fact.
3
The causes
of this neglect are not altogether clear, but Ibbetson has provided two important
clues.The ¢rst is that because the substantive tort of negligence developed out of
n
Worcester College, Oxford.A draft of this article was discussed in theTorts subjects ection meetingat
the annual conference of the Society of Legal Scholars in September 2005, and I am grateful to the
participants for their comments. I am also indebted to Ken Oliphant, Robert Stevens and the anon-
ymous MLR referees for their helpful comments on earlier drafts.The usual disclaimers apply.
1 K. Oliphant,‘The Nature of TortiousLiability’ in A. Grubb (ed),TheLaw ofTort (London: Butter-
worths,20 02) para 1.12.
2See,eg,PirelliGeneral CableWorksvOs car Faber [1983] 2 AC 1; Law Society vSephton& Co [20 06]
UKHL 22.
3See,eg,Cowan vChiefConstableof Avon and Somerset Constabulary [2001] EWCACiv 1699, where,
although the Court of Appeal held thatthe police owed no duty ofcare to a tenant unlawfully
evicted in their presence, no mention was made of the fact that the claimant appeared to have
su¡ered no actionable damage.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(1) MLR 59^88
the action on the cas e,‘right from the start there were no inhere ntbou ndaries as to
what constituted a recoverable loss’, and nor were any provided by the natural
lawyers whose works provided the intellectual background to the new cause of
action.
4
The other clue may lie in Ibbetson’s observation that it was only in the
latter part of the twentieth century that lawyers began tofocus on the type of loss
su¡ered in negligence cases:their forebears were moreconcerned with the way in
which that loss h ad come about.
5
Since those same forebears wrote the textbooks
that established the analytical structureof the negligence tort, and since thatstruc-
ture is still in use today, it is perhaps not surprising that even though lawyers are
now more alert to the type of harm the claimant has su¡ered there has still not
been ^ with a few notable exceptions
6
^ a great deal of academic analysis of the
damage concept.
7
Although one consequence of the academic neglect of the actionable damage
issue is the absence of an established framework of governing principles, it is not
mypurpose in this article to constructa frameworkof this kind. Instead,my more
modest aim is to focus attention on a number of new forms of actionable damage
which appear either to have received recognition by the courts in recent years, or
to be close toreceiving such recognition. Inso doing, I hope both to identifyand
to analyse some developments of signi¢cance for particular areas of negligence
law, and also to advance understanding of the actionable damage concept as a
whole. Before we turn to those developments, however, a few general observa-
tions concerning the actionable damage requirement will be in order.The ¢rst is
the rather obvious observation that some torts are actionable per se and some are
actionable only on proof of damage. There is a correlation between this distinc-
tion and the historical distinction between actions in trespass and actions on the
case, though th e correlation is not now a precise one, since certain actions on the
case have been held to be actionable in the absence of proven harm.
8
The second
4 D. Ibbetson,‘How the Romans Didfor Us: Ancient Roots of theTort of Negligence’(2003) 26
UNSWLJ475,488.
5 D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press,
1999)194^195.
6 See particularly,J. Stapleton,‘The Gist of Negligence’ (1988)104 LQR 213,389; C.Witting,‘Phy-
sical Damagei n Negligence’[2002] CLJ189;and (from a comparativelaw perspective) C.von Bar,
‘DamageWithoutLoss’ inW.Swadling and G. Jones (eds),The Searchfor Principle(Oxford:Oxford
University Press,1999). For a useful example of the scrutiny of the damage issue in a particular
context, see C.A. R.Weston,‘Suing in Tort forLoss of Computer Data’ [1999]CLJ 67.
7 Ibbetson remarks that historically the principal textbooks showed ‘a near-cavalier disregard for
the question’ (n 4 above, 488n), and of the leading contemporary works, only J. Fleming,The
Law ofTorts (Sydney: LBC Information Services, 9
th
ed,1998) devotes achapter to the subject, all
but two pages of which (216^218)de alwith causation. The neglect of the damageissue in negli-
gence has parallels with the tendency onthe part of legal theorists to under-theorise the concept
of harm, on which see R.West,Caring forJustice (NewYork:NewYorkUniversity Press,1997)ch 2.
8See,eg,WilliamsvPeelRiverLand and MineralCo (1886)55 LT689 (conversion); Constantine vImper-
ialL ondonHotels Ltd [1944] KB 693(wrongful exclusion from an inn).In WatkinsvSecretaryof State
forthe Home Department[2004] EWCACiv 966, [2005]2 WLR 1538, the Court of Appealheld that
the same was true of the tort of misfeasance in public o⁄ce, but that decision has now been
reversed by the House of Lords ([2006] UKHL 17, [2006] 2 WLR 807), where Lord Carswell
incorrectly suggested(at [79]) that a claimant will alwaysfail in an action on the case if he can not
prove damage.The action on the case for libel is also actionable per se (as are certain forms of
slander),though here the reasoning seems to be that damage is presumed, rather than thatdamage
New Forms of Damage in Negligence
60 r2007 The Author.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(1) MLR 59^88
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