Endgame: On Negligence and Reparation for Harm
Endgame: On Negligence
and Reparation for Harm
Introduction
The central query of this chapter is the extent to which the law of negligence should expand to better accommodate our human experience of personal harm and injury. It is well recognised that the law of negligence falls far short of offering universal coverage in responding to harm. As Conaghan and Mansell note, ‘While some kinds of harms are easily assimilated within the traditional corpus of law, others do not lend themselves so easily to tortuous characterization’ (1999: 161). In social life, while it may seem obvious that a serious harm has been sustained, in negligence some claims quickly fall between the floorboards. This may be owing to the absence of fault, or the inability to show a causal link, however, of interest here are those kinds of harms which negligence struggles to admit, and those which it treats as thoroughly unproblematic.
As the following discussion explores in the context of human harms, negligence illustrates a continued preference for physical bodily harm in determinations of actionability. Only on rare occasions does the damage concept acknowledge harms which flow from anything other than a physical bodily injury. While many of us might think of a physical injury such as a fractured skull as evidently harmful, where the preference for physical bodily harms in negligence operates perniciously is by virtue of what is generally excluded: harms, which though often just as serious and potentially corrosive of life, fail to manifest themselves principally through the physical body, but rather admit of a psycho-social nature.
That the damage concept operates so exclusively has attracted an extensive critical commentary. For many, negligence is open to criticism for being unprincipled, inegalitarian and capricious, as well as embracing archaic views of humanity which smack of unreality. Undeniably this raises the global concern of the operation of torts and its societal efficacy. In so far as that preoccupies most mainstream tort theorists, as all the contributions to this collection emphasise, it is also critical to centralise a feminist perspective which looks at the particular operation of torts. In so far as negligence has operated to generally exclude harms of a psycho-social character (which in theory applies to all), once we scratch below the formal surface of that policy, we find a less than universal impact or distribution. An analysis of the damage concept illustrates a long-standing neglect of harms which women suffer, as women. Tort law, as Conaghan argues, ‘while quick to defend and protect interests traditionally valued by men, is slow to respond to concerns which typically involve women, for example, sexual harassment or sexual abuse’ (Conaghan 1996: 48). In this respect then, if the aim is for a fairer system, any reform agenda will need to pay close attention to the general and the particular operation of legal policy.
How negligence should develop to address these weighty concerns presents an enormous jurisprudential challenge. Negligence cannot accommodate all ‘harms’ so a choice must be made as to which are accommodated. In the face of an emerging set of claims which present hair-splitting scenarios, in having the look and feel of a conventional personal injury case but lacking the physical bodily damage strictly demanded, this chapter argues that what is becoming increasingly apparent is the absence of a robust normative justification to guide the courts as to where those lines should be drawn. Commentators are also divided on the question and generally fall into two broad camps: those who advocate that negligence extends to accommodate broader harms, these being every bit as real and harmful as physical ones; and those who determine that the boundaries of negligence should be preserved by restricting its remit to address only the repercussions of physical bodily harms. Irrespective of whether that produces arbitrary and unfair results, negligence must have limits. These two positions leave us with quite a stark choice – between incrementally bolting on new forms of harm to existing kinds of damage recognised, or restricting it to a narrow range of harms which fail to speak to the experiences and life dialogues of many which tort ought to speak to.
As the chapter notes, neither position presents a genuine solution once we consider the broader operation of negligence law. What both positions overlook are quite foundational questions concerning how negligence operates in practice, and the thorny question as to what we hope to achieve through providing reparation for harm via negligence. This is the ‘endgame’ question which the chapter urges that we now need to address: why do we provide redress at all? It is now critical that reformers, and indeed those seeking to advance women’s interests, return to ask really foundational questions of torts and to more closely scrutinise taken-for-granted ideas which have shaped not only the damage concept, but the reparative ideal itself.
To illustrate the kind of foundational thinking the author has in mind, the chapter focuses on the most taken-for-granted kind of harm: physical bodily harm. The issue here is not the priority afforded to by contrast with psycho-social harms, but rather the ‘common sense’ notion that physical bodily harm is experienced as universally and especially harmful and causative of serious loss. Insights from behavioural science and litigation practice not only raise serious questions which go to the core of what negligence is, but ultimately raises doubts as to the potential of negligence to ever operate as an egalitarian system.
Challenging the preference for corporeal harm
In the law of negligence, ‘damage’ holds a central role and is said to form the ‘gist of the action’ (Stapleton 1988: 213). Therefore, a claimant will not only need to establish a duty of care, a breach of that duty, and that the breach has caused the damage complained of – she must also show that the type of harm she has suffered is one that is accepted by the law as ‘actionable’. Though the concept of ‘damage’ is poorly defined in negligence, the suffering of a ‘plain and obvious physical injury’ presents no problem (Atiyah 1997: 94). Therefore, gastroenteritis suffered through swallowing parts of a snail in a bottle of ginger beer, cancer or lung diseases suffered through exposure to asbestos in the workplace, will most certainly constitute physical harms for the purposes of negligence (Witting 2002). Beyond these so-called ‘obvious’ injuries things become more complex. Defined under section 38(1) of the Limitation Act 1980, ‘personal injury’ ‘includes any disease and any impairment of a person’s physical or mental condition’. Yet while that definition of personal injury seems to allow for a more expansive reading in also addressing mental harms, in terms of what kind of injury may trigger an actionable claim in negligence, it is well known that emotional harm, which falls short of psychiatric illness (such as mere anxiety, inconvenience or discomfort), is never actionable, while a medically verified psychiatric illness is only actionable under limited circumstances.1 As such, the concept of damage as it relates to human harm constitutes a remarkably narrow category; as Lord Hoffmann noted in Rothwell v Chemical and Insulating Co Ltd [2007]:
Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a change in physical condition, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capacity.
(Rothwell v Chemical and Insulating Co Ltd [2007]: [7]; my emphasis)
No reference is made to emotional harm as a form of damage; such harm is treated as a category of consequential loss for which one must first establish prior physical damage. Other than the narrowly circumscribed situations where claimants can demonstrate that a duty of care exists to protect them from purely psychological harm, anything short of that, claimants must demonstrate the prior existence of a physical injury ‘hook’ for emotional harms to be recoverable (Stapleton 1988).
It is at this point, the boundary between actionability and non-actionability, that the operation of the damage concept becomes objectionable. It is an exclusive category that acts as the gatekeeper for financial reparation. As such, while there is no problem in saying that generally a duty of care will be owed for a more than negligible physical injury which results from a positive act of a defendant, in relation to psycho-social harms the same cannot be said. The kind of harm matters, and in so far as the law has general anxieties about the character of psycho-social harms and holding defendants liable for these, no matter how serious or disabling the harm that results and how careless the defendant, claimants will struggle to gain reparation for their loss. While there are established instances where psychological harm is treated as damage,2 the courts restrict the liability situations via the concept of duty. As such, if psychological harm is a kind of damage, it is tenaciously guarded and ring-fenced. Though conceptually capable of embracing a broader understanding of what ‘damage’ means, far beyond physical bodily trauma, the law of negligence eyes with suspicion harms which manifest themselves not as bodily abnormalities, but as psycho-social tragedies.
That the damage concept works to offer minimal recognition of harms of a purely psycho-social nature has been the subject matter of a lengthy and voluminous critique. The modern day consensus tends to point to the absence of justification for drawing distinctions between physical harm and psycho-social harm. The thrust of commentary suggests that if one searches for a robust justification as to why or how lines can be drawn between such harms, one will struggle to find it. As Conaghan and Mansell (1999: 35) comment, ‘physical injury is often accompanied by emotional distress while psychiatric harm is regularly exhibited through an array of physical symptoms (such as vomiting, insomnia, weight loss and other ‘stress-related’ illnesses)’. While medicine and science illustrate the ‘close and symbiotic relationship between mental and physical health’, the distinction between these categories nevertheless remains ‘deeply embedded in the doctrinal substance of negligence law’ (Conaghan and Mansell 1999: 35). Much of what can be said to be deleterious about a physical state, is psychological and subjective. Pain, for example, while having physiological dimensions has psycho-somatic ones too; it is also a ‘social and cultural phenomenon’ (Winance 2006: 1110).
The arbitrariness inherent in such line drawing becomes more evident once we contemplate our own subjective experience. In view of how we feel, the assumption that physical harm makes us especially ‘worse off’ or provides an objective means of assessing when serious harm has occurred, rather crumbles. If we consider the impact of different events that we experienced, from a physical ail such as a broken leg, to events which are not strictly speaking, physical, such as the loss of a loved one, to caring for a sick and elderly parent – all of these events are mediated through persons possessing bodies with remarkably similar effects. Whilst they endure they can prove to be psychologically and socially corrosive in their impact. They relate to our emotional being in the world, and our connections with, and responsibilities to, others. They possess physical and emotional dimensions in so far as they can result in declines in physical and mental health, but often imperceptibly and gradually; they often entail hard work, both physically and emotionally, in supporting others. Many of these can be regarded as chosen situations, but structurally they will feel unavoidable. These kinds of experiences may be part of the package of life, but for as long as they endure they keep us standing in the same spot. They can disable us. It is in this important sense that these experiences fail to differ from the experience of injuring oneself skiing in terms of the meaning of our lives and interference with the things we most value. If one considers the effects of dealing with that broken leg is that one suffers pain, has to reorganise how to get around, cannot play football for the time being and must endure the hassle of frequent hospital visits, we start to see how the assumption that physical harms are different in nature from other kinds of harms, looks rather artificial indeed. On this analysis at least, if we think about the precise way that any of these events might interfere with our lives, our hopes and aspirations, when destabilising events are the product of negligence, there seems to be no sound theoretical basis for calling one set of experiences ‘life’ and another ‘injury’.
For some, however, the events which harm them may quickly be deemed ‘life’ by virtue of the line drawn between physical and psycho-social harms. For example, too often the harms that women sustain as women, have fallen into the ‘vicissitudes’ or ‘life’ category as is demonstrated by the slow recognition of mental disturbance as a legally cognisable harm, or through the scaling back of meaningful compensation for parents of unwanted children born as a result of negligence in family planning procedures (see McFarlane v Tayside Health Board [2000]; Priaulx 2007). That tort fails to ‘see’ many of the injuries that women sustain as women – of reproductivity, pregnancy, childbirth and the emotional and life capital lost through caring for a child that one had planned not to have – is deeply embedded within the analytical categories that control liability and remedies. These categories are not objective but require ‘substantive choices to be made about which claimed injuries it will remedy’ (Lieberman 1977: 63). Because categories such as damage reflect a choice as to which aspects of human social life should be treated as injurious, we need to be watchful as to which, and more particularly, whose social experiences it picks up. As Conaghan comments:
[I]njury has a social as well as an individual dimension: people suffer harm not just because they are individuals but also because they are part of a particular class, group, race or gender. Moreover, their membership of that particular class, group, race or gender can significantly shape the nature and degree of the harm they sustain. The problem with law then is its failure to recognize that social dimension. Consequently, and in the context of gendered harms, it fails to offer proper redress.
(Conaghan 1996: 408)
In all of these respects then the preference for physical harm over harms of a psycho-social nature not only serves to draw lines between kinds of harm, but entire categories of victim whose biographies express harm in ways that fail to fit the dominant dialogue of negligence law. Under such circumstances, tort will behave as if the experiences which harm and injure us are simply part of the normal (rather than injured) life course. For example, it is only since the late 1970s that sexual harassment has been transformed from behaviour widely regarded as a ‘harmless’ part of normal human engagement to behaviour constituting sex discrimination, deserving of a legal response (Conaghan 2002). And it is important here to recognise how these analytical categories can march on for decades whilst failing to speak to the innumerate experiences of classes and populations of people to whom it officially purports to apply to. In the context of emotional harms, as Martha Chamallas and Jennifer Wriggins argue, while the traditional justification was that the law was directed at protecting material interests and physical harm, leaving emotions and relationships beyond legal protection, this ‘basic demarcation line had important gender implications for compensation’:
[L]osses typically suffered by men were often associated with the more highly-valued physical realm, whilst losses typically suffered by women were relegated to the lower-valued realm of the emotional or relational.
(Chamallas and Wriggins 2010: 37–8)
And that privileging of physical harm over emotional harm ‘persists to this day’ (Chamallas and Wriggins 2010: 38). As a vast body of feminist literature powerfully illustrates in making visible the manner by which law has excluded those experiences and risks which either exclusively, or more frequently pertain to the biographical experience of being a woman (see Conaghan 1996; Graycar and Morgan 2002; West 1997) the concern for negligence law to reflect psycho-social harms is more than a wish for inclusive symbolism. The question of the kinds of harms picked up has serious repercussions in relation to which injuries, and indeed very often, whose injuries are addressed by tort.
The litany of problems attending the preference for physical bodily harm in negligence is not, of course, news. What is perhaps most surprising is that negligence continues to operate in this way despite long-standing and wide-spread cognisance of the serious problems attending the kinds of harms that negligence addresses and those that it does not. Judges have long recognised that harms of a psycho-social nature ‘may be far more debilitating than physical harm’ (Lord Steyn in White v Chief Constable of South Yorkshire Police [1999]: 492), yet remain prepared to continue restricting recovery for purely psychological harm. However, an emerging genus of case, the ‘damage hybrid’, seems set to pose the most serious challenge to established boundaries of the damage concept. Such cases make even more transparent the serious shortcomings of the operation of the damage concept, and in the wake of such claims, it will be correspondingly even more difficult for the judiciary to restrict recovery in a principled way.
Arguably, claims for purely psychological damage via ‘nervous shock’ constituted the first serious assault on the damage concept in easing negligence towards admitting harms of a purely psycho-social nature. These cases demanded explicit consideration as to the limits of negligence and its receptiveness to different kinds of harms. While these cases now receive some level of recognition and have required the courts to address the assumptions underpinning the dichotomy between physical injury and harms of a psycho-social nature, these claims continue to be treated restrictively. However, what could be termed ‘damage hybrid’ cases or what Horsey and Rackley refer to as claims for ‘messed up lives’ (2011: 160), might well constitute the second assault. Holding strong psycho-social and practical dimensions, these hybrid claims sit somewhere in between two recognised forms of damage in negligence law: first, the conventional personal injury case which involves an unproblematic form of physical bodily injury, and secondly, that of the purely psychological damage via ‘nervous shock’ situation, in particular where a primary victim sustains psychiatric trauma as a result of narrowly escaping physical injury (see, for example, Page v Smith [1996]). As the next section explores, though meeting with varying levels of success, the ‘hybrid damage’ cases have very ably revealed the arbitrariness and lack of principle attending the damage concept because these cases look so much like the conventional personal injury case in all but the specific kind of damage sustained. Moreover, and quite critically, what is particularly striking is that the courts have shown an increased willingness to depart from the idea that strictly bodily physical harm is necessary to satisfy damage. Whilst greater acceptance of such claims will be welcomed by some in starting to address the weighty criticism attending the narrow interpretation of the damage concept, for others, this will be one incremental step too far.
On the limits of legal incrementalism
Incrementalism, where categories like damage grow in order to encompass a broader range of situations and harms which had not previously been actionable, is part and parcel of the legal enterprise. With a few peaks and troughs en route, the tort of negligence itself has emerged literally out of a case involving alleged snail remains in a bottle of ginger beer (Donoghue v Stevenson [1932]) into the ‘super-size’ tort that it is today to cover a broad range of liability situations which a century ago would have been unthinkable.3