Reproducing the Properties of Harms that Matter: The Normative Life of the Damage Concept in Negligence

Abstract

The overarching theme of this work is the extent to which the damage concept within the law of negligence reflects our human and social experience of personal harm and injury – and critically, the extent to which the current grammar of negligence law permits it to. My claim is that if the concept of damage is a normative one – one itself imbued with ideals of social justice and equality, directed towards treating like cases alike – then the law of negligence will treat the human experiences that accompany different forms of putative damage as stuff central to the damage enquiry. As I seek to argue here, that notion that the damage concept is a normative one, open to new situations in which it can be shown that individuals are left ‘appreciably worse off’, is the stuff of legal myth. Centralising the reproductive tort cases which have proved dominant in the theorisation of harm I illustrate how traditional understandings of damage as physical hurts and mediated through ‘common sense’ understandings of loss have rendered irrelevant the psycho-social and practical factors which prove crucial to an enquiry in assessing whether individuals are left appreciably worse off. The thrust of the argument is that because the very grammar of the damage concept fails to engage with individuals’ biographies – the “stuff” that gives meaning to the harms they have sustained – it impacts hard not only on the ‘damage’ question as to whether particular harms should be embraced within negligence on normative grounds but on the extent to which negligence itself can be said to have normative traction capable of delivering results that are fair, capable of producing horizontal justice and treating like cases alike.