ABSTRACT
This chapter was written in honour of Jane Stapleton and explores an idea that she helped popularise: that ‘damage is the gist of negligence’. This chapter distinguishes between two different senses of that phrase: (1) that a claimant has to show that they have suffered damage in order to claim that the tort of negligence has been committed in relation to them; and (2) that a claimant has to show that they have suffered damage in order to bring a claim in negligence against a defendant. I argue that (1) is untrue, and that while (2) is obviously true, there are occasions when the law would do better to dispense with this requirement as a precondition of allowing a claimant to sue in negligence.
McBride, Nicholas, The Real Gist of Negligence (April 24, 2024), University of Cambridge Faculty of Law Research Paper; in Kylie Burns, Jodi Gardner, Jonathan Morgan and Sandy Steel (eds), Torts on Three Continents: Honouring Jane Stapleton (Oxford University Press, 2024).
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