THE PROTECTION OF PERSONAL INTERESTS

• Citation: (2015) 27 SAcLJ 643
• Published date: 01 December 2015
• Date: 01 December 2015

Evolving Forms of Damage in Negligence

This article considers the extent to which courts in various jurisdictions have, in recent years, widened the scope of recoverable damage in negligence actions involving the invasion of personal interests. Thus, for example, awards with respect to unwanted pregnancies in wrongful conception situations straddle the line between physical injury and mere inconvenience or temporary discomfort, and conventional awards for the disruption to parents’ lives in such situations also fall outside what would once have been defined as recognisable damage. In other medical negligence scenarios, too, compensation is now awarded in circumstances where the lack of definable damage would, in the past, have prevented successful claims, and in the separate field of negligently imposed detention there are also suggestions that deprivation of liberty may be redefined as inherently recoverable loss. This more liberal approach to damage — which is still in its infancy and has yet to be adopted in the majority of personal interest situations — appears to be based on an (often implicit) acknowledgment that the need to limit the scope of recognisable harm is trumped by the desirability of vindicating personal rights and the undesirability of creating hollow duties.

I. Introduction

1 The tort of negligence of course requires proof of damage — and indeed damage is often referred to as the “gist” of negligence.1 The definition of damage has, however, traditionally been closely circumscribed, and although the categories of recoverable harm have

expanded beyond the paradigm physical injury to embrace damage which is both purely economic and psychiatric in nature, it is widely accepted that to allow claims for more ephemeral forms of injury would have a detrimentally expansionary effect. In order to keep within reasonable bounds the number of claims which may be initiated, more nebulous (and endemic) responses to a defendant's conduct are excluded from the definition of actionable harm.

2 In recent years, though, courts in a number of jurisdictions have recognised certain personal interests as deserving of protection in negligence even when their violation results in consequences which fall outside the conventionally acknowledged parameters of damage. This article will discuss the newly protected interests and the forms of harm to which their recognition has arguably given rise. In so doing, it will consider the policy factors which underlie the more flexible approach to damage, and in particular two major considerations which have proved influential in the cases under review — the rights-based analysis under which it is argued that tort law should offer a cause of action for wrongs suffered as well as for tangible damage sustained;2 and the related argument that when personal interests are enshrined as legal rights the resulting duties must not be hollow, and that their violation must therefore be capable of vindication through monetary compensation. It will also consider situations in which this expansionary approach can be seen as indicating an augmented role for the tort of negligence — taking it beyond the field of compensation and even deterrence to fulfil a more regulatory function.3

3 It is worth noting at the outset that since there is no formal definition of what does — or perhaps more importantly what does not— constitute recoverable damage for the purposes of negligence, there is nothing to dictate that interests which appear to fall outside the traditional categories of physical, mental and economic harm may not

enjoy protection. The real question, to which there is as yet no clear answer, is whether the protection of such interests should be equated with recognition of “new” forms of damage, or whether it should instead simply be regarded as an extension of the existing categories of recognised harm.4 In examining the circumstances in which evolving forms of damage appear to be gaining recognition — as well as those in which a more traditional approach to damage continues to be favoured — the article will consider this question. It will also consider the prospect for further relaxations to the notion of damage in the coming decades.

II. A more flexible approach to damage

A. Pregnancy and childbirth following medical negligence

4 Claims for pregnancy and childbirth following medical negligence are nowadays available only in limited circumstances. In the UK, the result of the decisions in McFarlane v Tayside Health Board5

(“mcfarlane”) and Rees v Darlington Memorial Hospital NHS Trust6

(“rees”) has been to allow wrongful birth7 claims for the special costs of raising a child born with disabilities,8 while refusing wrongful

conception9 claims for the costs associated with raising a healthy child — a position which appears to have been endorsed in Singapore in the cases of JU v See Tho Kai Yin10 and, more recently, ACB v ThomsonMedical Pte Ltd.11 And although in Cattanach v Melchior12 (“cattanach”) the High Court of Australia narrowly allowed a wrongful conception action for the cost of raising a healthy child, the impact of the decision was subsequently eroded both by general legislation in all Australian jurisdictions to limit tort claims13 and by specific provisions restricting claims to the particular costs of raising disabled children in actions for wrongful birth.14

5 The policy considerations in this area of the law raise a plethora of moral and ethical issues, the resolution of which arguably extends beyond the proper judicial function. For this reason, it has even been suggested that determination of the law in this area might more appropriately be placed in the hands of the Legislature.15 Nevertheless — whatever one's view of the legitimacy of refusing claims for the cost of

raising a healthy child — the courts in the UK, and, it seems, Singapore,16do allow a woman who gives birth to a healthy child as a result of medical negligence to bring a claim for the pain, discomfort and inconvenience arising from the pregnancy and birth. While their Lordships in McFarlane rejected claims for wrongful conception where healthy babies were concerned, the majority nevertheless awarded damages to compensate for the experience of unwanted pregnancy and childbirth. Notably only Lord Steyn, dismissing an argument to the contrary, specifically treated pregnancy and childbirth as personal injury,17 but although his fellow judges did not regard these conditions as falling within the orthodox definition of damage, they were nevertheless willing either to equate them with damage or to sidestep the distinction. Thus, Lord Hope described the claim as “analogous” to a claim for personal injury,18 and Lord Slynn declared it unnecessary to consider the claim “in terms of ‘harm’ or ‘injury’ in [the] ordinary sense of the words”.19 On this basis, damages were awarded for the pain, suffering, and inconvenience of pregnancy and childbirth.

6 In the wake of McFarlane, the question of whether pregnancy and childbirth amount to physical damage has been the subject of academic debate. On the one hand, it has been observed that these are natural processes for which a woman's body is designed. Indeed, they are processes which most women hope to experience at some stage. They do not, in themselves, amount to an illness, nor do they normally result in permanent physiological changes to a woman's body. This being so, it is argued that the gravamen of the argument in actions for pregnancy and childbirth is that “there should be recovery for pain, suffering and inconvenience suffered simpliciter… unattached to any deleterious physical change”.20 On the other hand, it has also been observed that, to a woman who has sought to avoid having a child, the changes to her body and the pain, suffering and inconvenience associated with pregnancy and childbirth will certainly be perceived as physical damage, and so should be viewed as such. In this respect, it is argued that although a definition of damage which depends on the person to whom it is being applied may be novel, this need not prove an insuperable obstacle to its recognition.21

7 Whichever of these two approaches one favours, the award of damages for the pain and suffering associated with pregnancy and childbirth is exceptional, since either it regards pain and suffering as actionable without the need to attach them to recognisable damage, or, uniquely, it treats these natural and transient conditions as themselves constituting such damage. Arguably, though, a third approach, based on a rights-based analysis, might offer a better way to deal with situations of this kind. Under such an approach, the relevant damage could be categorised as the diminished autonomy suffered by a woman as a result of the intrusive changes to her body during pregnancy and childbirth. If — as is considered below in relation to conventional damages for an unplanned addition to one's family22— one accepts the argument that diminished autonomy is nowadays capable of being regarded as a form of damage in its own right, such an approach would offer a more holistic means of satisfying the requirement that damage be established in actions for negligence, while overcoming the difficulties associated with the (at best questionable) notion that pregnancy and childbirth really are forms of physical harm.

B. Conventional damages for an unplanned addition to one's family

8 The only judge in McFarlane not to agree that damages should be awarded to compensate for the mother's pain and discomfort during pregnancy and childbirth was Lord Millett, who held that “normal pregnancy and delivery were … an inescapable precondition of [the baby's] birth” and were thus simply “the price of parenthood”.23 However, notwithstanding his Lordship's conservative approach in this respect, he would have made a conventional award to acknowledge the loss of autonomy suffered by both parents in being unable...