Abstract:
The boundaries of recovery for personal injury, property damage, psychiatric damage and pure economic loss have been the subject of extensive judicial discussion. However, the courts are constantly asked to consider whether to expand recovery for such damage to novel situations. Wrongful conception is one such situation. In these cases parents claim, inter alia, the costs of raising a child conceived and born as a result of a negligent medical sterilisation procedure or negligent advice on this procedure. Decisions of the highest courts in common law jurisdictions reveal significant differences in judicial strategies deployed to consider whether to recognise recovery. Using wrongful conception cases as a case study, this paper article compares and analyses various aspects of the judicial strategies. Five main areas of concern with judicial strategy are identified (including: for example, problems with the conceptualisation of the harm claimed; insufficient attention to incrementalism and the pace and “quantum” of the development of the law; and the development of hard-edged and categorical “rules” leading to either anomalies or “injustice” in subsequent cases). The aim of this paper article is to evaluates these problems and to offers some preliminary conclusions on what kind of overall judicial strategy may be best for handling novel situations: one which addresses these five concerns. These conclusions could generally assist courts when they are considering whether to allow recovery in other new situations.
Jhaveri, Swati, Judicial Strategies in Recognising New Areas for Recovery in Negligence – Lessons Learned from Wrongful Conception Cases (August 7, 2013). (2013) 21 Tort Law Review 63.
First posted 2013-08-07 16:48:43
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