aWorcester College, Oxford. A draft of this article was discussed in the Torts subject section meeting at the annual conference of the Society of Legal Scholars in September 2005, and I am grateful to the participants for their comments. I am also indebted to Ken Oliphant, Robert Stevens and the anonymous MLR referees for their helpful comments on earlier drafts. The usual disclaimers apply.
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New Forms of Damage in Negligence
Article first published online: 4 JAN 2007
DOI: 10.1111/j.1468-2230.2006.00626.x
Additional Information
How to Cite
Nolan, D. (2007), New Forms of Damage in Negligence. The Modern Law Review, 70: 59–88. doi: 10.1111/j.1468-2230.2006.00626.x
Publication History
- Issue published online: 4 JAN 2007
- Article first published online: 4 JAN 2007
Keywords:
- Tort – negligence – actionable damage – new forms of damage – imprisonment;
- wrongful conception;
- educational negligence
Although damage is an essential component of negligence liability, important extensions of the categories of actionable damage occur with little or no analysis or even acknowledgement of the fact. In this article, consideration is given to a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition. The article is divided into three core sections, dealing with negligent imprisonment, wrongful conception and educational negligence. The principal conclusions are that redress for negligent imprisonment is best achieved through recognition of imprisonment as actionable damage in negligence; that an unwanted pregnancy is a form of personal injury, albeit an unusual one; that the conventional sum award in wrongful conception cases is best analysed as compensation for a diminution in the parents' autonomy; and that while untreated learning disorders are now treated by the courts as a form of personal injury, in the absence of such a disorder educational under-development ought not to be recognised as actionable damage in its own right.