The Great Illusion: Tort Law and Exposure to Danger of Physical Harm
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00774.x |
| Date | 01 November 2009 |
| Published date | 01 November 2009 |
The Great Illusion:Tort Law and Exposure to Danger
of Physical Harm
EmmanuelVoyiakis
n
In the aftermath of Gregg vScott andJohn ston vNEI, it is commonly thought that claims forexpo-
sure to danger of physical harm are not independently compensatable in English law.I argue that
this assumption is doubly mistaken. On the one hand, claimants exposed to danger of physical
harm have acompell ingargument of principle for the recovery of anys igni¢canti ncreasei nthe
cost of their options for deali ng with the carelessly heightened danger to their physical health.
On the other hand, that argumentof pri nciplei s not blockedby Gregg, or other cases in the l ine of
precedent consolidated in thatdeci sion.Properly construed, the rejection of the plainti¡’sclaims
in Gregg and Johns ton is consi stent with a right of recovery for signi¢cant costs following from
careless exposure to danger of physical harm.
Supposethat my carelessness has exposedyour physical health to danger, eg I have
administered the wrong drug to you and, although as far as experts can tell your
physical health has not been adversely a¡ected, your chances of developing lung
cancerare now increasedby 20 per cent. DoesEnglish law require me to compen-
sate you for endangering your health?
The decision of the House of Lords in Johnston vNEI International Combustion
Ltd
1
(Johns ton) suggests in no uncertain terms that claims of this sort were
declared not compensatable in Gregg vScott
2
(Gregg), where a patient was unsuc-
cessful in claiming compensation for the fact that his doctor’s negligence had
materially reduced his chances of recovery from a life-threatening disease. Look-
ing back at the decision in Gregg,theJohnst on opinions summed up its essence as
follows:
Neither .. . the risk of future illness or anxiety about the possibility of that risk
materializing amount to damage for the purpose of creating a cause of action,
although the law allows both to be taken into account in computing the loss suf-
fered by someone who has actually su¡ered some compensatable physical injury
and therefore has a cause of action.
3
n
Lecturer, Brunel LawSchool. I am grateful to RoderickBagshaw, PeterJa¡ey,Stuart Laki n,George
Letsas and the MLR’s twoa nonymousreferees for their comments. I am also grateful to participants in
the Torts section of the 2008 SLS Conference at the London School of Economics, where I had the
opportunity to present an early version of this paper.
1 [2007] 3 WLR 876.
2[2005]2AC176.
3Johnstonat [2]per Lord Ho¡mann. See also at [12]:‘Inprinciple, neither the risk of future injury nor
anxiety at the prospect of future injury is actionable. These propositions are established by the
decisions of the House in Gregg vScott and HicksvChief Constableof the SouthYorkshire Policerespec-
tively’.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 7 2(6) 9 09^935
[I]t is accepted that a risk, produced by a negligent act or omission, of an adverse
condition arising at some time in the future does not constitute damage su⁄cient
to complete a tortious cause of action (see Gregg vScott . . .).The victim of the negli-
gence must awaitevents.
4
The view that Gregg held negligent exposure to danger of physical harm (or the
negligent reduction of one’s chances of avoiding such harm) not to be indepen-
dentlycompensatable is equally undisputed in the literature.
5
Indeed, theconsen-
sus for that view is so overwhelming that the plainti¡s in Jo hnst on expressly
accepted that the substantial increase in their risk of developing lung cancer as a
result oftheir employers’carelessness did notprovide themwith su⁄cient causeof
action.Accordingly, they made very clear that they were not claiming compensa-
tion on that ground.
6
I believethat the consensus aboutthe proper readingof Gregg and its impact on
claims forexposure todanger of physical harm is mistaken. In particular, Iwant to
suggest that the quoted statements inJoh nsto n are inaccurate as a matter of princi-
ple and obiter as a matter of precedent. They are inaccurate in principle insofar as
claimants carelessly exposed to danger of physical harm have a compelling sub-
stantive argument for the recovery ofany signi¢cant increase in the cost of their
options for dealing with the heightened dangerto their physical health. And they
are obiter as a matterof precedent because that substantive argument is actually not
blocked by Gregg, or other cases in the line of precedent consolidated in that deci-
sion. Properly construed, and under certain conditions of principle to be dis-
cussed, the rejection of the plainti¡’s claim of ‘loss of chance’ in Gregg is
consistent with a right of recovery for any increase in the claimant’s costs for
dealing with the heightened danger of physical harm; in that sense, the idea
that Gregg precluded recoveryof those costs is an illusion. Dispelling that illusion
can provide a better explanation of thereasons why someclaims of compensation
for exposure to risk of harm have failed and a more accurate and normatively
attractive construction of how English tort law treats instances of physical
endangerment.
4Johnstonat [67] per LordScott (citations omitted); see also at [88] per Lord Rodger.
5 J. Stapleton, ‘Loss of the Chance of Cure from Cancer’ (2005) 68 MLR 996, 1005: ‘pure loss of
chance will remain not recoverable in unresolved cases relating to physicalstates’; A. Beever,‘Gregg
vScott and Loss of Chance’ (2005)24 UQLJ 10;C. Miller,‘Gregg vScott:Loss of Cha nceRevisited’
(2005) 4 Law, Probabilitya nd Risk 227, 228; A.Burrows,‘Uncertainty about Uncertainty: Damages
for Loss of a Chance’ (2008) 1 Journalof Personal Injury Law 31, 38^39; R. Stevens,Torts and Rights
(Oxford: Oxford University Press, 2007) 46: ‘Gregg vScott is best explained as a refusal to award
compensation for the increased risk of avoiding harm in the future’; M. Lunneya ndK. Oliphant,
Tort Law: Cases and Materials (Oxford: Oxford University Press, 3
rd
ed, 2008) 224: ‘So does Gregg
preclude altogether the awardof damages for the loss of chance of avoiding personal injury? It is
certainly not possible to succeed in such a claim, where,as in Gregg, the on lyclaim available is for
loss of chance as the adverseoutcome has not yet occurred’;N. McBride and R. Bagshaw,TortLaw
(London: LexisNexis Butterworths, 3
rd
ed, 2008) 560; W. Rogers, Win¢eld & Jolowicz onTort Law
(London: Sweet& Maxwell, 17
th
ed, 2007) 287.
6Johnston at [89] per Lord Rodger: ‘Under reference to Gregg vScott, counsel for the claimants
accepted that, byitself, the present risk that they might eventually developasbestosis or mesothe-
lioma does not giveri se to a claim fordamages’.Al so at[41]per Lord Hope.
The Great Illusion
910 r2009The Author. Journal Compilation r2009 The Modern Law ReviewLimited.
(2009) 72(6) 909^935
To continue reading
Request your trial