Nicolette Priaulx, ‘Injuries That Matter: Manufacturing Damage in Negligence’

This paper questions the extent to which the concept of damage within the English law of negligence reflects our human experience of personal harm. My interest is in the essential nature of the damage concept, in particular, whether it can be assessed as being driven by normative concerns, or simply a device driven by the policy of control and limitation. While negligence does not offer universal coverage in responding to harm, the paper pays close attention to points where it is encouraged to embrace new forms of damage. Of interest are types of personal harm which have triggered legal debate around the question as to whether actionable legal harm has occurred. Focusing on cases which I refer to as ‘damage hybrids’, cases which sit outside the traditional boundaries of the damage concept, this paper demonstrates a continued preference for interpreting damage and personal injury as conventional forms of physical and bodily loss, with continued suspicion surrounding and disregard for harms of a psycho-social nature. As the paper seeks to demonstrate, while the damage concept treats the psycho-social dimension of harm as largely irrelevant, courts will always be constrained in their ability to properly engage in normative questions around whether a particular harm ought to count as actionable or not. In other words, issues that are arguably critical for a principled and coherent evaluation of damage or indeed, negligence itself, are missing. An analysis of the assumptions informing such deliberations tells us much about the extent that law connects with our social experience of being human, about the defensibility of the lines drawn in establishing damage, and ultimately, it can also tell us about the limits of the law.

Nicolette M Priaulx, Injuries That Matter: Manufacturing Damage in Negligence (2015).

First posted 2015-04-20 08:41:21

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