D. Damage

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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It is axiomatic that no liability can arise in negligence unless the plaintiff suffers damage as a result of the defendant’s wrongful act. Proof of

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negligent conduct without consequences will not do. This is not a matter of debate or contention in negligence law. It is true that the punitive and deterrent functions of negligence law would support the idea of liability for merely exposing another to a significant risk of injury, but the compensatory rationale of the tort is so dominant and the flood of litigation would be so great that such a notion has not received serious consideration.

There is little authority on the seriousness of harm to satisfy this requirement since the cost of the torts process excludes many minor and marginal claims. Occasionally, difficult questions about the scope and definition of personal injury and property loss have arisen. Two English cases are illustrative. In Rothwell v. Chemical & Insulation Co. Ltd.91the House of Lords held, in a controversial decision, that pleural plaques in the lungs of plaintiffs who had been negligently exposed to asbestos were not "personal injury" sufficient to support a negligence action since pleural plaques do not create any symptoms and do not cause other asbestos-related illnesses.92In Yearworth v. North Bristol NHS Trust,93the plaintiffs required chemotherapy which threatened their fertility. Before the treatment, they chose to freeze samples of their semen at the defendant hospital. When the semen was destroyed by the negligence of the defendant, the plaintiffs were robbed of their chance for future fatherhood. The Court of Appeal held that the loss of semen was "damage" sufficient to support a negligence action. It was, however, in its opinion, a type of property loss rather than personal injury.94There has been considerable debate about whether other categories of damage should be recoverable in negligence. There is a good deal of caselaw, for example, defining the scope of recovery for psychiatric damage and economic losses. But this debate has not taken place under the rubric of damage. It has taken place in a discussion of one or other of the control devices: duty of care and remoteness of damage. The element of damage has therefore been largely marginalized from...

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