The Great Illusion: Tort Law and Exposure to Danger of Physical Harm

Abstract

In the aftermath of Gregg v Scott and Johnston v NEI, it is commonly thought that claims for exposure to danger of physical harm are not independently compensatable in English law. I argue that this assumption is doubly mistaken. On the one hand, claimants exposed to danger of physical harm have a compelling argument of principle for the recovery of any significant increase in the cost of their options for dealing with the carelessly heightened danger to their physical health. On the other hand, that argument of principle is not blocked by Gregg, or other cases in the line of precedent consolidated in that decision. Properly construed, the rejection of the plaintiff's claims in Gregg and Johnston is consistent with a right of recovery for significant costs following from careless exposure to danger of physical harm.