New Forms of Damage in Negligence

Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 New Forms of Damage in Negligence† DONAL NOLAN 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. Keywords: negligence; damage; personal injury; negligent imprisonment; wrongful conception; educational negligence [T]ort law can be employed to protect whatever interests are deemed worthy of protection in any particular society: the list of protected interests is not set in stone.1 [59] INTRODUCTION That damage is an element of the tort of negligence is not in doubt: actionable injury completes the cause of action, so that time begins to run for limitation purposes only from the moment it occurs.2 It seems strange, therefore, that this † This material was first published by The Modern Law Review Ltd and Blackwell Publishing in Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59 and is reproduced by agreement with the publishers. The definitive version is available at http://doi.org/10.1111/j.1468-2230.2006.00626.x.  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. K. Oliphant, ‘The Nature of Tortious Liability’ in A. Grubb (ed), The Law of Tort (London: Butterworths, 2002), para 1.12. 1 2 See eg Pirelli General Cable Works v Oscar Faber [1983] 2 AC 1; Law Society v Sephton & Co [2006] UKHL 22. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 essential component of negligence liability should be so widely ignored. Issues concerning actionable damage are frequently repackaged as questions of duty or causation, and important extensions of the categories of actionable damage take place with little or no analysis or even acknowledgement of the fact.3 The causes of this neglect are not altogether clear, but Ibbetson has provided two important clues. The first is that because the substantive tort of negligence developed out of [60] the action on the case, ‘right from the start there were no inherent boundaries as to what constituted a recoverable loss’, and nor were any provided by the natural lawyers whose works provided the intellectual background to the new cause of action.4 The other clue may lie in Ibbetson’s observation that it was only in the latter part of the twentieth century that lawyers began to focus on the type of loss suffered in negligence cases: their forebears were more concerned with the way in which that loss had come about.5 Since those same forebears wrote the textbooks that established the analytical structure of the negligence tort, and since that structure is still in use today, it is perhaps not surprising that even though lawyers are now more alert to the type of harm the claimant has suffered there has still not been – with a few notable exceptions6 – a great deal of academic analysis of the damage concept.7 Although one consequence of the academic neglect of the actionable damage issue is the absence of an established framework of governing principles, it is not my purpose in this article to construct a framework of this kind. Instead, my more modest aim is to focus attention on 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. In so doing, I hope both to identify and to analyse some developments of significance for particular areas of negligence law, and also to advance understanding of the actionable damage 3 See eg Cowan v Chief Constable of Avon and Somerset Constabulary [2001] EWCA Civ 1699, where, although the Court of Appeal held that the police owed no duty of care to a tenant unlawfully evicted in their presence, no mention was made of the fact that the claimant appeared to have suffered no actionable damage. D. Ibbetson, ‘How the Romans Did for Us: Ancient Roots of the Tort of Negligence’ (2003) 26 UNSWLJ 475, 488. 4 5 D. Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999), 194-195. See particularly, J. Stapleton, ‘The Gist of Negligence’ (1988) 104 LQR 213, 389; C. Witting, ‘Physical Damage in Negligence’ [2002] CLJ 189; and (from a comparative law perspective) C. von Bar, ‘Damage Without Loss’ in W. Swadling and G. Jones (eds), The Search for Principle (Oxford: Oxford University Press, 1999). For a useful example of the scrutiny of the damage issue in a particular context, see C.A.R. Weston, ‘Suing in Tort for Loss of Computer Data’ [1999] CLJ 67. 6 Ibbetson remarks that historically the principal textbooks showed ‘a near-cavalier disregard for the question’ (n 4 above, 488n), and of the leading contemporary works, only J. Fleming, The Law of Torts (Sydney: LBC Information Services, 9th ed, 1998) devotes a chapter to the subject, all but two pages of which (216-218) deal with causation. The neglect of the damage issue in negligence has parallels with the tendency on the part of legal theorists to under-theorise the concept of harm, on which see R. West, Caring for Justice (New York: New York University Press, 1997), ch 2. 7 Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 concept as a whole. Before we turn to those developments, however, a few general observations concerning the actionable damage requirement will be in order. The first is the rather obvious observation that some torts are actionable per se and some are actionable only on proof of damage. There is a correlation between this distinction and the historical distinction between actions in trespass and actions on the case, though the correlation is not now a precise one, since certain actions on the case have been held to be actionable in the absence of proven harm.8 The second [61] point is that where damage is required, what qualifies as actionable varies with different torts: 9 substantial inconvenience and discomfort constitute damage in private nuisance, for example, but not in negligence. The third point is that a distinction should be made between forms of harm which are never actionable in negligence, and those which are actionable only in certain limited circumstances. Emotional harm falling short of a recognised psychiatric illness is in the former category; recognised psychiatric illnesses themselves are in the latter (along with pure economic loss). Furthermore, it seems preferable to deal with the question of whether a given harm is ever actionable under the heading of actionable damage, and to deal with the question of whether a sometimes actionable harm is actionable in this particular case under the separate heading of duty of care, since doing so draws attention to the distinction we have identified, and makes it more likely that the important issues raised by the former question will be addressed openly and comprehensively. Unfortunately, however, there is a tendency to subsume the damage issue into the duty of care question,10 though the practice of the courts in this regard has not been consistent: in the psychiatric injury context, for example, the actionable damage issue has been dealt with at the duty of care stage, but in other types of case it has frequently been treated as an independent element of the negligence inquiry.11 The fourth point is that physical harm to the claimant’s person or property clearly constitutes actionable damage for 8 See eg Williams v Peel River Land and Mineral Co (1886) 55 LT 689 (conversion); Constantine v Imperial London Hotels Ltd [1944] KB 693 (wrongful exclusion from an inn). In Watkins v Secretary of State for the Home Department [2004] EWCA Civ 966, [2005] 2 WLR 1538, the Court of Appeal held that the same was true of the tort of misfeasance in public office, but that decision has now been reversed by the House of Lords ([2006] UKHL 17, [2006] 2 WLR 807), where Lord Carswell incorrectly suggested (at [79]) that a claimant will always fail in an action on the case if he cannot prove damage. The action on the case for libel is also actionable per se (as are certain forms of slander), though here the reasoning seems to be that damage is presumed, rather than that damage is not required: see Constantine at 699 per Birkett J. It has been argued that nuisance may also be actionable without proof of damage where the interference is with a servitude of the claimant, but the better view is that damage is in fact required: see Grubb, n 1 above, para 22.14. 9 See E (a minor) v Dorset County Council [1994] 3 WLR 853 at 876 per Evans LJ. See R.W.M. Dias, ‘The Duty Problem in Negligence’ [1955] CLJ 198, 202; Oliphant, n 1 above, para 1.11. 10 11 See eg Hotson v East Berkshire Area Health Authority [1987] 2 WLR 287, 295 per Sir John Donaldson MR; E (a minor), n 9 above, at 874 per Sir Thomas Bingham MR; Hunter v Canary Wharf Ltd [1996] 2 WLR 348, 365-367 per Pill LJ; W v Home Office [1997] Imm AR 302, 312 per Lord Woolf MR. In Harriton v Stephens [2006] HCA 15, Hayne J specifically commented (at [161]) that the question of what was recognised as actionable damage in negligence was ‘separate and distinct from questions of duty or causation’. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 negligence purposes, though the boundaries of the concept of physical damage are not always clear.12 And the final, rather elementary, point is that the issue of the damage sufficient to establish a cause of action should not be confused with the harms for which recovery is permitted once the cause of action has been established.13 Hence while distress or upset do not themselves ground a negligence claim, if they are brought about by a harm that does – such as a broken leg – then compensation will generally be payable in respect of them. The article is divided into three core sections. In the first section, I consider whether imprisonment is, and ought to be, recognised as a form of actionable damage in negligence. The normative element of this inquiry entails, among other things, an assessment of the relative merits of negligence and false imprisonment as modes of redress for negligent imprisonment. In the second section, I look at issues concerning actionable damage raised by the case law on wrongful conception. In particular, I consider the characterisation of pregnancy as personal [62] injury, and the form of damage, if any, which underlies the conventional sum that is now awarded to the parents in such cases. And finally, in the third section of the article I turn my attention to the law concerning liability for educational negligence, and I ask whether failure to ameliorate a specific learning disorder is, and ought to be, classified as actionable damage, and also whether, in the absence of such a disorder, impaired intellectual development can and should be capable of constituting the gist of a negligence action. NEGLIGENT IMPRISONMENT On 3 January 1990, an elderly couple went to the maternity hospital in Liverpool to visit their new-born grandson. The lift they took to the second floor was overloaded, and came to a standstill between floors; it was an hour and twenty minutes before the occupants were released. The couple sued the health authority in negligence for the mental distress this experience caused them, but their claim was dismissed. Although the trial judge found that the defendants had been negligent in not installing a cut-out device which would have prevented the lift from moving when overloaded, the Court of Appeal held that, in the absence of a recognisable psychiatric illness, the claimants had suffered no actionable damage.14 Suppose, however, that the claimants had taken a different tack, and argued that the imprisonment was itself a form of actionable damage (regardless of its consequences)? Would this argument have succeeded? More generally, do such instances of negligent imprisonment merit redress, and, if so, 12 See further the articles by Stapleton and Witting cited in n 6 above. Nor should the concept of actionable damage be confused with the pleader’s term ‘special damage’: see G. Williams and B.A. Hepple, Foundations of the Law of Tort (London: Butterworths, 1976), 59-61. 13 14 Reilly v Merseyside Regional Health Authority (1995) 6 Med LR 246. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 should this be via the tort of negligence or instead by the extension of the tort of false imprisonment to cover negligent conduct? Two different categories of ‘negligent imprisonment’ case should be distinguished. In the first, the imprisonment is not intended, but comes about by accident. Examples include people being trapped in malfunctioning lifts and toilet cubicles15; people being accidentally locked into libraries, bank vaults16 and department store wash rooms17; and Street’s example of a new chaplain visiting a prisoner in his cell, who is not warned that the cell door locks automatically. 18 In the second category of case, the imprisonment is intended, but the decision to imprison is arrived at as a result of a mistake. Instances of this type of case include the confinement of a patient under mental health legislation after an inaccurate diagnosis,19 a delay in the release of a prisoner caused by an administrative error,20 and the detention of an asylum seeker by immigration officials who had mixed up his file with someone else’s.21 Although the gist of the wrong is the same in both [63] cases, in the first category the imprisonment will generally be brief and often trivial, and the likelihood of litigation will therefore be low. (If the accidental confinement causes the claimant to suffer personal injury, then recovery for this in negligence should be straightforward, subject to arguments from remoteness and contributory fault.22) In the second category, by contrast, the loss of liberty is likely to be much more serious, as regards both its duration and its consequences, and hence the claimant is more likely to seek redress. Two other points should be made about the second category of case. One is that cases of deliberate imprisonment may give rise to public policy concerns that will militate against the imposition of liability. The other is that, where the imprisonment is intentional, a straightforward claim for false imprisonment will lie if the mistake in question renders the detention unlawful (since the requisite intention is to imprison, not to imprison unlawfully). A complication is that the defendant in such an action will usually not be the person responsible for the mistake. In theory, this should not matter, but the courts are now inclined to extend the defence of lawful authority to protect 15 See Sayers v Harlow UDC [1958] 1 WLR 623. See A.J. Harding and Tan Keng Feng, ‘Negligent False Imprisonment – A Problem in the Law of Trespass’ (1980) 22 Malaya L Rev 29, 29. 16 17 See F.A. Trindade, ‘The Modern Tort of False Imprisonment’ in N.J. Mullany (ed), Torts in the Nineties (Sydney: LBC Information Services, 1997), 254. 18 H. Street, The Law of Torts (London: Butterworths, 1955), 22. 19 See eg Everett v Griffiths [1920] 3 KB 163. 20 See eg Clarke v Crew (1999) 149 NLJ 899. 21 W v Home Office [1997] Imm AR 302. 22 See eg Sayers, n 15 above, where a woman trapped in a public toilet injured herself in the course of an escape attempt. The Court of Appeal held that the damage was not too remote, but reduced the claimant’s damages by one quarter for contributory negligence. See also the example given in the US Restatement, Second, Torts, § 42, comment b, of a boy whose health suffers after he spends two days locked in a bank vault without food or water. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 defendants who have themselves acted reasonably,23 and this tendency to shield the innocent gaoler from liability forces the claimant to look to the party at fault for redress. This shift of focus means that in practice liability for negligent imprisonment has become more important than was previously the case. In the discussion that follows I will consider whether liability for negligent imprisonment is best brought about through recognition of loss of liberty as actionable damage in the tort of negligence or through extending the tort of false imprisonment to cover negligent conduct. Each option will be considered in turn, and its advantages and disadvantages will be assessed. Of course it could be argued that neither option need be adopted, since negligent imprisonment does not warrant redress unless personal injury results. However, if we bear in mind the importance of freedom of movement as an interest in its own right, and also the many negative consequences to which detention can give rise, then it seems reasonable to proceed on the basis that some form of liability is appropriate for negligent imprisonment, at least in serious cases.24 This conclusion is reinforced by the fact that freedom of movement is an interest protected against negligent conduct in most civil law systems.25 [64] Liability for imprisonment in negligence The first route to recovery for negligent imprisonment is recognition of imprisonment as a form of actionable damage in negligence. A significant advantage of this option is that it would not require any change in the law, as there is already a body of authority in which the actionability of imprisonment appears to have been assumed. Most of the relevant cases are from the last decade or so, but there is also an older line of authority dealing with negligent certification of lunacy. In De Freville v Dill,26 for example, liability was imposed on a doctor who had negligently issued a medical certificate which led to the claimant’s detention under section 16 of the Lunatic Act 1890. The claim was described by McCardie J as ‘an action on the case for negligence’. 27 Furthermore, the actionability of imprisonment was not questioned in two other cases in which the Court of Appeal dismissed similar claims on the grounds of lack of duty or legal causation, Thompson v Schmidt28 and Everett v Griffiths.29 23 See eg Percy v Hall [1997] QB 924; Olotu v Home Office [1997] 1 WLR 328; Quinland v Governor of Swaleside Prison [2002] EWCA Civ 174, [2003] QB 306. But cf R v Governor of Brockhill, ex p Evans (No 2) [2001] 2 AC 19. See Harding and Tan, n 16 above, 30; F.A. Trindade, ‘Some Curiosities of Negligent Trespass to the Person: a Comparative Study’ (1971) 20 ICLQ 706, 711-712 (drawing attention to the humiliation, mental suffering, and disgrace which a negligent imprisonment may cause). 24 25 C. von Bar, The Common European Law of Torts, vol 2 (Munich: C.H. Beck, 2000), para 76. 26 (1927) 96 LJKB 1056. 27 ibid, 1060. 28 (1892) 56 JP 212. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 The first of the more recent authorities was Welsh v Chief Constable of the Merseyside Police,30 where the Crown Prosecution Service (CPS) had failed to inform a magistrates’ court that two of the claimant’s offences had already been taken into consideration in the Crown Court. As a result, a warrant was issued for the claimant’s arrest when he failed to turn up at the magistrates’ court, and he spent two days in police custody before the mistake was discovered. Tudor Evans J refused to accede to the defendant’s request that he strike out the claim on the ground that the CPS did not owe a duty of care to the claimant. No mention was made of the damage issue. The CPS was also the defendant in Elguzouli-Daf v Commissioner of Police of the Metropolis,31 where the two claimants complained that their pre-trial detention had been unnecessarily prolonged by the negligent failure to discontinue their prosecutions at an earlier stage. This time the Court of Appeal upheld the trial judge’s decision to strike out the claim on the ground that no duty of care was owed for public policy reasons. There was no need for the court to consider the damage issue,32 but the fact that both Steyn LJ and Morritt LJ appeared to agree with the result in Welsh33 is an indication that they were prepared to accept the actionability of detention in an appropriate case.34 [65] However, perhaps the two most significant authorities on imprisonment as damage are W v Home Office35 and McLoughlin v Jones.36 In W the claimant was an asylum seeker whose detention had been extended as a result of an administrative error on the part of the immigration authorities. Two preliminary points came before the Court of Appeal: whether the defendant owed the claimant a duty of care in respect of the length of time for which he was detained, and whether the prolongation of the claimant’s detention constituted loss or damage in respect of which a negligence action would lie. Although the Court decided the first point in favour of the defendant, it would have backed the claimant on the second. Lord Woolf MR cited the negligent certification cases, as well as Welsh and Eguzouli-Daf, and concluded that detention was a 29 [1920] 3 KB 163. Atkin LJ dissented, but the decision was affirmed by the House of Lords: [1921] 1 AC 631. 30 [1993] 1 All ER 692. 31 [1995] QB 335. Morritt LJ assumed in favour of the claimants that they had ‘suffered damage of the type relevant to a claim in negligence’ (ibid, 351). 32 33 ibid, 350, 352. See also Clarke v Crew (1999) 149 NLJ 899, where the Court of Appeal upheld the trial judge’s decision to award compensation to a man imprisoned for 32 hours as a result of the negligent endorsement of a warrant by a police officer. Simon Brown LJ did not address the question of actionable damage in terms, though he did point out that incarceration seriously affects a prisoner’s well-being. 34 35 n 21 above. 36 [2001] EWCA Civ 1743, [2002] QB 1312. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 recognised form of damage.37 The claimant in McLoughlin alleged that his solicitor’s incompetence had caused him to be wrongfully convicted of causing grievous bodily harm and robbery. He spent three months in prison before his convictions were quashed, and sought redress for, among other things, a psychiatric illness caused by this experience. The Court of Appeal held that he was a primary victim for the purposes of the law governing psychiatric injury, and hence that he could recover for the illness if it had been reasonably foreseeable. In the course of her reasoning on this issue, Hale LJ made clear that in her view imprisonment was a serious harm, akin to physical injury: ‘Loss of liberty,’ she remarked, ‘is just as much an interference in bodily integrity as is loss of a limb.’38 Since it would follow from this that the tort of negligence ought to give as much protection to freedom of movement as it does to physical integrity, her Ladyship’s comments, coupled with the reasoning in W, are a strong indication that the courts will continue to recognise imprisonment as the gist of a negligence action in appropriate cases.39 Academic writers have endorsed the courts’ recognition of imprisonment as damage, and argued that this represents the optimal solution to the problem of negligent imprisonment. Hence Heffey, the most prominent advocate of this approach, has remarked that: Freedom of movement is certainly an interest which the law of torts protects and there does not seem to be any conceptual reason why the violation of this … interest should not be regarded as damage [in negligence]. Loss of personal liberty is almost as grave a deprivation as loss of life itself.40 [66] It is also noteworthy in this connection that imprisonment constitutes damage for the purposes of another action on the case, the tort of malicious prosecution.41 An objection to this course of action is that it could lead to the imposition of liability in very trivial cases, as where the claimant is locked in a room for only thirty seconds before the defendant realises her mistake. And 37 n 21 above, 312-313. 38 n 36 above at [57]. 39 The only case that casts doubt on this conclusion is the hospital lift case, Reilly v Merseyside Regional Health Authority (discussed above, text preceding n 14), but there the imprisonment point was neither taken nor considered. In W, Lord Woolf MR commented (n 21 above, 313) that in any case there was ‘an obvious distinction between being detained in a lift and being detained in a prison,’ though query whether this distinction should affect the actionability of the harm. 40 P.G. Heffey, ‘Negligent Infliction of Imprisonment: Actionable ‘Per Se’ or ‘Cum Damno’?’ (1983) 14 Melb ULR 53. See also M.A. Millner, Negligence in Modern Law (London: Butterworths, 1967), 210 (‘There is no reason in principle, why deprivation of freedom should not be a category of negligence’). Other supporters of the negligence route include L. Klar, Tort Law (Toronto: Thomson Carswell, 3rd ed, 2003), 54 (discussing battery), and, more tentatively, D. Howarth, Textbook on Tort (London: Butterworths, 1995), 462 and W.V.H. Rogers, Winfield & Jolowicz on Tort (London: Sweet & Maxwell, 16th ed, 2002), 97. 41 Fleming, n 7 above, 686. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 although this difficulty could be avoided by requiring that the imprisonment be ‘substantial’, such a requirement would itself be problematic: how long, for example, would a claimant have to be stuck in a lift for her imprisonment to count as substantial? In truth, however, there is nothing unique about imprisonment in this respect – the smallest of scratches, whether to me or to my car, presumably grounds a negligence action – and it must be assumed that either a person who suffers trivial injury will not bother to litigate, or that the court will punish her with an order for costs if she does. Similarly, the fact that the claimant’s loss would ordinarily not be pecuniary in nature is no objection to negligence liability. The same is true of claims for pain and suffering and loss of amenity in personal injury cases, and, as there, the courts would somehow have to translate a non-pecuniary loss into money’s worth for the purposes of compensation. Account should of course be taken of the duration of the imprisonment, and of any humiliation or distress suffered. If the claimant’s confinement leads to consequential harm, such as physical injury or economic loss, then this should also be compensated, provided it was reasonably foreseeable. A more significant difficulty with the negligence route to redress arises in cases where the claimant is unaware of her imprisonment, or, although aware of it, would not have left the place of her confinement even had she been able to do so. It might be thought that the latter scenario is the more straightforward, since it could be argued that to interfere with a person’s freedom of movement is to deprive that person of the opportunity to move around, in which case such an interference occurs regardless of whether the person wishes to do so or not. This was accepted by the Court of Appeal in Weldon v Home Office, where Ralph Gibson LJ said that an action in false imprisonment would lie in such a case,42 while adding that the fact that the imprisoned person did not wish to leave would be relevant to the assessment of damages.43 In such a scenario, it would also be possible to hold that there was actionable damage for the purposes of negligence, although it would then follow that the claimant would be entitled to substantial (as opposed to nominal) damages. If the claimant is entirely unaware of her confinement, then the case for liability seems weaker, although here too it has been accepted that liability could be imposed in false imprisonment, with the caveat that in such a scenario the claimant could ‘normally expect to recover no more than nominal damages.’44 From the negligence point of view, however, this caveat is [67] problematic, since nominal damages cannot logically be awarded where a cause of action can only be established on proof of damage. It 42 [1990] 3 WLR 465, 470 (and that this would be so even if the claimant had been obliged – under a contract, for example – to remain in the place of confinement). 43 44 ibid. Murray v Ministry of Defence [1988] 1 WLR 692, 703 per Lord Griffiths. The Court of Appeal made an award of nominal damages in a case of this kind, R v Bournewood Community and Mental Health NHS Trust, ex p L [1998] 2 WLR 764 (see at 778 per Lord Woolf MR), but was then reversed on liability by the House of Lords: [1999] AC 458. According to the US Restatement, Second, Torts, § 42, either consciousness of the confinement or resultant harm is required for an action in false imprisonment to lie. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 follows that if negligence liability were to be imposed in this scenario, substantial damages would have to be awarded in both causes of action (since it would surely be unacceptable if the remedy in negligence were to be better than the remedy in false imprisonment), and it might be concluded, therefore, that imprisonment ought only to qualify as actionable damage where the claimant is aware of it, thereby ruling out redress in negligence in this type of case. Negligent false imprisonment Some commentators have argued that the problem of negligent confinement should be dealt with by imposing liability in the tort of false imprisonment.45 False imprisonment can be defined as the unlawful and direct imprisonment of another person, with imprisonment meaning a total restraint of that other’s freedom of movement. This cause of action is a form of trespass to the person, and hence actionable per se. The obvious advantage of dealing with negligent confinement cases in false imprisonment would therefore be that difficulties surrounding the characterisation of imprisonment as ‘damage’ would fall away.46 However, there is an equally obvious objection to this approach, which is that, as English law stands, liability in trespass to the person requires intention – carelessness is not enough. The authority for this proposition is the judgment of Lord Denning MR (with whom Danckwerts LJ agreed) in Letang v Cooper: If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person … If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence ….47 The proponents of negligent false imprisonment have attempted to sideline Letang v Cooper in various ways. It has been pointed out, for example, that the courts have not yet closed the door on actions for negligent trespass in Australia48 [68] and Canada49 (though they have in the United States50), but while Harding and Tan, n 16 above; Trindade, n 17 above, 252-256; U. Burnham, ‘Negligent False Imprisonment – Scope for Re-emergence?’ (1998) 61 MLR 573. 45 46 F. Trindade and P. Cane, The Law of Torts in Australia (Melbourne: Oxford University Press, 3rd ed, 1999), 332. 47 [1965] 1 QB 232, 239. See also Wilson v Pringle [1987] QB 237, 247 per Croom-Johnson LJ; Wainwright v Home Office [2001] EWCA Civ 2081, [2002] QB 1334 at [71] per Buxton LJ. Diplock LJ took a slightly different approach in Letang, though one leading to the same results. In particular, while his Lordship was prepared to countenance an unintentional trespass, he made it clear that for liability to arise for an unintentional trespass, actual damage would have to ensue. For a convincing critique of his reasoning, see Jolowicz [1964] CLJ 200, 201-202. 48 See Trindade and Cane, n 46 above, 328-330. 49 See A.M. Linden, Canadian Tort Law (Toronto: Butterworths, 5th ed, 1993), 252-254. 50 Restatement, Second, Torts, §§ 13, 18 (battery), 21 (assault), 35 (false imprisonment). Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 this may be significant when it comes to the discussion of the issue in those jurisdictions, it is of little relevance to claimants in this country. 51 A stronger point is that Letang was concerned with battery, not false imprisonment, and that there is an important distinction between the two, since while negligent batteries or assaults do not merit compensation unless bodily or psychiatric injury results,52 a negligent imprisonment may well do so.53 This distinction suggests that while Letang v Cooper is a significant obstacle to recovery for negligent false imprisonment, it may not be an insuperable one. There is, however, a further difficulty with the false imprisonment route, which is that recovery for negligent confinement would depend on the existence of a direct link between the defendant’s conduct and the claimant’s confinement. As Pollock CB once remarked, ‘a person ought not to be held responsible in trespass, unless he directly and immediately causes the imprisonment’.54 This element of directness may be missing both in the case where the imprisonment is accidental, and where it is intentional but attributable to a mistake of the defendant. As to the former, if it is accepted that the element of directness is missing where the defendant digs a pit into which the claimant falls,55 then the same must presumably be true when the entrapment results from the careless failure to repair a lift or a toilet door. As to the latter, where (as is usually the case) the defendant is not the claimant’s gaoler, the presence of a sufficiently direct link is unlikely.56 Consider, for example, the facts of Welsh v Chief Constable of the Merseyside Police,57 discussed above, where the claimant spent two days in police custody as a result of the failure of the CPS to inform a magistrates’ court that two of his offences had already been taken into consideration by another court. A claim against the CPS in negligent false imprisonment would almost certainly have failed on these facts for lack of directness. It is also unlikely that the directness requirement would be satisfied where, for example, the defendant negligently certifies that a patient’s mental health requires her involuntary 51 For a comparative overview of negligent trespass, see Trindade, n 24 above. 52 The strongest counter-example would perhaps be if X unintentionally spat in the face of Y (P.G. Heffey and H. Glasbeek, ‘Trespass: High Court Versus Court of Appeal’ (1966) 5 Melb ULR 158, 163), but even here the absence of intention undermines an argument based on Y’s dignity interest, and the mere unpleasantness of the experience does not itself justify legal redress. 53 Harding and Tan, n 16 above, 30. For this reason, Winfield & Jolowicz, n 40 above, 96-97 approves Letang v Cooper in the battery/assault context, but has reservations in the case of false imprisonment. 54 Grinham v Willey (1859) 4 H & N 496, 499; 157 ER 934, 935. 55 The classic example: see Trindade, n 17 above, 231. 56 Where the mistake is by the gaoler, then an orthodox false imprisonment claim will lie, subject to the defence of lawful authority: ‘negligent’ false imprisonment would add nothing. 57 n 30 above. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 hospitalisation,58 where the incompetence of a solicitor causes her client to be imprisoned for an offence he did not [69] commit,59 or where a mistake by a store detective leads a police officer to arrest the claimant.60 The result is that the extension of false imprisonment to negligent conduct would catch only a narrow band of negligent imprisonment cases, of the kind where the defendant accidentally locks the claimant into a library, bank vault and so forth. Not only would this limit the effectiveness of this liability route, it would also foster arbitrary distinctions: why should a student locked in the college library for half an hour have a remedy, and an asylum seeker locked in a detention centre for two months as a result of an administrative error have none? To give the trespass tort more bite, and to eliminate such arbitrary distinctions, would require abrogation of the directness requirement, a move taken by the drafters of the Second Restatement of Torts. 61 Such a move could be defended on the ground that it would put the modern law of trespass to the person on a more rational footing, but it would be a radical step, since the connection between trespass and directness goes back a long way. And it would surely be too much to ask the courts to couple this step with a departure from Letang v Cooper, so as to allow actions in trespass for confinement caused both indirectly and negligently. The conclusion must be that while theoretically there is scope for expanding false imprisonment to deal with the problem of negligent imprisonment, it is unlikely that the courts will take the steps required, particularly when an alternative route to liability is readily available. Before we dismiss the option of imposing liability in false imprisonment for careless confinement, however, the arguments put forward by the supporters of this approach must be addressed. Not infrequently, the case for the false imprisonment route is a negative one: redress should be available, and imprisonment is not actionable in negligence, so extension of the nominate tort is required.62 Since we have seen that the assumption which underlies this argument is mistaken, it need not detain us further. More important are the positive arguments Trindade and Burnham have put forward for preferring the false imprisonment approach to the negligence one. Trindade has drawn attention to what he considers to be the possible advantages to the claimant of 58 Hence the false imprisonment claim was withdrawn in De Freville v Dill, n 26 above, a case of this kind. See also Everett v Griffiths, n 29 above, 219 per Atkins LJ (‘Had the action been framed for false imprisonment only, I could have appreciated the ground of the decision on the principle of cases where the prosecutor has been held not to be liable for imprisonment ordered by the judicial decision of the Court’). 59 See eg McLoughlin v Jones, n 36 above (litigated in negligence). 60 See Davidson v Chief Constable of North Wales [1994] 2 All ER 597. Here the action was in false imprisonment, but it failed on directness grounds, since the police officer exercised an independent discretion. 61 See Restatement, Second, Torts, §§ 13(b) (contact caused indirectly a battery), 35(1)(b) (confinement caused indirectly a false imprisonment). 62 See eg Harding and Tan, n 16 above; Trindade and Cane, n 46 above, 331-332. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 bringing an action in negligent trespass.63 However, his principal focus is Australian law, and it would seem that a claimant in this country would today only rarely benefit from framing her action in this way. Unlike in Australia and Canada, where the burden of proof as to fault shifts in trespass cases once direct interference has been established,64 in English law it remains with the claimant.65 Nor would a claimant generally benefit from a longer limitation period in false imprisonment. A negligence claim for imprisonment per se would presumably not be an action for ‘personal injury’ under section 11 of the [70] Limitation Act 1980, and hence would be subject to the ordinary tort limit of six years laid down in section 2 – as would a false imprisonment claim.66 Only if the claimant were to seek damages for personal injury suffered as a result of her confinement would there be a distinction: in negligence, the three-year limit would presumably apply, but in false imprisonment the limit would still be six years.67 And since it would appear that the defence of contributory negligence is available even in cases of intentional trespass to the person,68 it can scarcely be doubted (pace Trindade69) that a defendant in a negligent false imprisonment claim would be able to invoke it if appropriate. Finally, although in theory a claimant who sued in negligent false imprisonment would benefit from the more generous trespass rules as to remoteness – so that the test would be one of directness of the consequence, rather than its foreseeability – it is perfectly possible that the courts would decide that such a distinction was untenable, and hence would apply the foreseeability principle in cases of negligent trespass as well as in cases of negligence proper. Burnham, meanwhile, objects to the way in which the courts have refused to impose duties of care in negligent imprisonment cases for policy reasons,70 and envisages actions in negligent false imprisonment as a way round the problem.71 But in truth this draws attention to an additional advantage of the negligence approach. Where, as in all the litigated cases, the decision to imprison is deliberately arrived at, there may well be public policy objections to the imposition of liability. And unlike false imprisonment, the tort of negligence has a device tailor-made to deal with such arguments: the duty of care mechanism. 63 n 17 above, passim. 64 See Trindade and Cane, n 46 above, 332-336 (Australia); Klar, n 40 above, 47-48 (Canada). The rule does not apply in highway cases. 65 Fowler v Lanning [1959] 1 QB 426. 66 Trindade seems to assume that a negligence action for imprisonment would be caught by the shorter period (n 24 above, 725), but it is difficult to see why the words ‘personal injuries’ should be thought to cover confinement per se. 67 Following Stubbings v Webb [1993] AC 498. 68 Winfield & Jolowicz, n 40 above, 249. 69 cf Trindade, n 17 above, 256; n 24 above, 729-730. 70 See eg Elguzouli-Daf, n 31 above; W, n 21 above. 71 n 45 above. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 We may disagree with particular duty decisions that the courts have made in this area, but it seems odd to use that as an argument for putting it out of their power to make any such determinations in future. Nor is Burnham’s argument that careless imprisonment is a violation of a ‘constitutional right’ which the law of tort should ‘vindicate’ a convincing objection to the imposition of duty limits in negligence. Suppose that two prisoners are held on remand for six months before trial. In prisoner A’s case the CPS should have realised that he was innocent early on, and dropped the case; in prisoner B’s case, his innocence emerged only during the trial. Are we to believe that A’s constitutional rights have been violated, but that B’s have not? The only difference between the two is that in A’s case the CPS were careless, and in B’s they were not, but this should at most ground a negligence claim against the CPS for the damage they have done to A’s interest in freedom of movement. That is a weighty interest, and the courts should be slow to dismiss such a claim for policy reasons, but it is submitted that the invocation of A’s constitutional rights adds nothing to our understanding of the issues involved.72 [71] WRONGFUL CONCEPTION An action for wrongful conception is founded either on the failure of a doctor correctly to carry out a sterilisation or vasectomy operation, or on her failure to warn the subject of such an operation that a small risk of conception remains. In McFarlane v Tayside Health Board,73 the House of Lords held that for policy reasons a couple were unable to recover the cost of bringing up a child born to the wife after allegedly negligent advice as to the effect of a vasectomy on the husband. A majority of their Lordships were, however, prepared to allow the mother damages for the pain and distress caused by the pregnancy itself, and also for its direct financial consequences. The McFarlane decision was upheld by a seven-strong panel of the House of Lords in Rees v Darlington Memorial Hospital NHS Trust,74 where the majority ruled that no exception to the exclusion of child-rearing costs should be recognised in the case of a disabled mother, but that in all wrongful conception cases the parents were entitled to a conventional sum award of £15,000 (on top of the mother’s pregnancy claim) for the denial of an important aspect of their personal autonomy, namely ‘the right to limit the size of their family.’75 72 It is noteworthy in this regard that the House of Lords was dismissive of recognition of a particular category of ‘constitutional rights’ in the tort context in Watkins v Secretary of State for the Home Department, n 8 above. According to Lord Rodger (at [62]), ‘At least within the realm of tort law, questions about the availability of a remedy are best answered by looking at the substance of the supposed wrong rather than by reference to a somewhat imprecise label which lawyers might attach to it in another connection.’ 73 [2000] 2 AC 59. 74 [2003] UKHL 52, [2004] 1 AC 309. 75 ibid at [122] per Lord Millett. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 For the most part, the discussion in these cases, and in the equivalent authorities in other common law countries, has centred on arguments against the recovery of child-rearing costs based on the dignity or commodification of the child, the impossibility of assessing the damages, and distributive justice concerns. By contrast, the issue of actionable damage has received relatively little attention. The general perception seems to be that the mother’s pregnancy claim is a straightforward personal injury action, and that the claim for the cost of upkeep is for either a pure or a consequential economic loss. Both these propositions are plausible, but there are two complications which bring the wrongful conception cases within the scope of this article. The first is that some judges and commentators have argued that an unwanted pregnancy is not a physical injury (at least in the ‘orthodox’ sense). The second is that the form of actionable damage which underlies the conventional sum awarded in Rees seems to represent a significant departure from previous categories of recognised harm. These two issues will be considered in turn. Pregnancy as personal injury Where a procedure is carried out in order to avoid a particular event (here, pregnancy), the defendant is clearly in no position to turn around afterwards and deny that that event constitutes actionable damage. This explains why there is such broad acceptance that the mother in a wrongful conception case is the victim of a legal wrong, and why almost all the judges who have looked at the issue have agreed that she is entitled to damages at least in respect of the pregnancy and [72] birth.76 It would, however, be a mistake to conclude from this that the appropriate classification of the damage caused is irrelevant. In the first place, there could be analogous cases where the characterisation of the harm might make a difference. Suppose, for example, that the claimant became pregnant after having sex with a man whose vasectomy was carried out before her relationship with him began. If her injury is considered not to be physical, but (say) economic, then she is unlikely to recover, as the doctor will probably be held not to have assumed any responsibility towards her when he undertook the procedure.77 Similarly, an assumption of responsibility is unlikely to exist if 76 Lord Millett in McFarlane is a notable exception, but his conclusion was based on policy arguments, not a denial of the existence of damage. In the leading Australian case on wrongful conception, Cattanach v Melchior [2003] HCA 38, (2003) 215 CLR 1, there was no appeal from the award of damages to the mother for the pregnancy and birth (see at [14] per Gleeson CJ), and von Bar states that ‘nearly all’ European systems allow the mother to recover for loss of earnings arising out of pregnancy: C. von Bar, The Common European Law of Torts, vol 1 (Oxford: Oxford University Press, 1998), para 583. 77 See Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397. Note, though, the argument that even if the harm is characterised as physical in a case of this kind, liability should still be limited to those within the ‘zone of knowledge’ of the doctor at the time the treatment was given: I. Kennedy and A. Grubb, Medical Law (London: Butterworths, 3rd ed, 2000), 1585. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 the defendant is, for example, a manufacturer of faulty condoms, 78 or a pharmacist who mistakenly dispenses tranquillisers instead of contraceptives.79 Furthermore, the way in which the harm of unwanted pregnancy is classified raises a number of interesting issues, and calls into question the utility of a general test of physical damage in the law of negligence. Broader lessons can therefore be learned. In general, judges and commentators have been happy to accept that an unwanted pregnancy is a form of personal injury. Indeed, the point was effectively conceded in Walkin v South Manchester Health Authority,80 where the issue was whether a wrongful conception claim limited to the economic losses caused by an unwanted pregnancy and birth was none the less an action ‘in respect of personal injuries’ within the meaning of section 38(1) of the Limitation Act 1980. Similarly, in Richardson v LRC Products,81 Kennedy J seems to have assumed that an unwanted pregnancy amounted to personal injury and hence was actionable damage under the Consumer Protection Act 1987, and academic endorsement of this analysis has been provided by, among others, Rogers82 and Mullis.83 Furthermore, a similar approach is apparent in so-called ‘wrongful birth’ actions, where the alleged negligence relates not to the prevention of the pregnancy in the first place, but to its continuation through to birth; in this type of case, the unwanted continuation of the pregnancy has been treated as a form of personal injury.84 There have, however, been some dissenting voices. In Walkin itself, Roch LJ had [73] difficulty with the classification of pregnancy as a personal injury in cases where the motivation for the sterilisation or vasectomy was financial,85 while both Cooke J (in the New Zealand Court of Appeal)86 and the Lord Ordinary, Lord Gill (in the Outer House of the Court of Session) have disavowed such a characterisation altogether. Lord Gill, sitting at first instance in McFarlane, remarked: In my view, a pregnancy occurring in the circumstances of this case cannot be equiperated with a physical injury. Pregnancy causes discomfort, pain and sickness. Labour is acutely painful and distressing. But these are natural 78 See Richardson v LRC Products [2000] Lloyds Rep Med 280 (though here the condom was found not to have been defective). 79 As in Troppi v Scarf 187 NW 2d 511 (Mich, 1971). 80 [1995] 1 WLR 1543. 81 n 78 above. 82 H. Rogers, ‘Legal Implications of Ineffective Sterilization’ (1985) 5 LS 296, 310. 83 A. Mullis, ‘Wrongful Conception Unravelled’ (1993) 1 Med L Rev 320, 325. 84 Anderson v Forth Valley Health Board (1997) 44 BMLR 108, 137 per Lord Nimmo Smith; Das v Ganju [1999] PIQR P260; Godfrey v Gloucestershire Royal Infirmary NHS Trust [2003] EWHC 549, [2003] Lloyd’s Rep Med 398. 85 n 80 above, 1554. 86 L v M [1979] 2 NZLR 519, 529-530. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 processes resulting in a happy outcome. They are the natural sequelae of conception, and that is an event that in this case can hardly be considered as a physical injury per se. I do not consider that a normal pregnancy, even if undesired … can properly be described as a personal injury.87 Moreover, although this analysis was not endorsed when McFarlane reached the House of Lords, their Lordships were by no means agreed that pregnancy constituted personal injury in what might be termed the ‘orthodox’ sense. It is true that Lord Steyn specifically rejected a submission from counsel for the defenders that the ‘natural processes of conception and childbirth cannot in law amount to personal injury’, and that Lord Millett described an unwanted pregnancy as ‘an invasion of [the woman’s] bodily integrity’ which ‘threatened further damage both physical and financial,’88 but on the other hand Lord Hope described the mother’s claim only as ‘analogous’ to that which might be made in a case of personal injury,89 while Lord Slynn felt that nothing was to be gained by considering the events in terms of harm or injury in the ordinary sense: it was enough that the pregnancy was unwanted, and that the purpose of the vasectomy was to prevent it from taking place.90 Similar ambivalence can be detected in Witting’s article ‘Physical Damage in Negligence.’91 Although Witting accepts that pregnancy is physical damage of a ‘socially constructed’ kind, he denies that it amounts to physical damage of an orthodox kind. In McFarlane, he comments, ‘the mother’s conception was an entirely natural event that her physiological constitution was designed to induce and to accommodate,’ so that her ‘physiological integrity was not compromised.’92 Moreover, most women were ‘only too glad to avail themselves of the opportunity to conceive and to give birth at some stage in their reproductive lives.’93 It would appear, then, that the two principal concerns of those who are sceptical about the characterisation of pregnancy as physical damage are that pregnancy is a ‘natural’ event, and that some (perhaps most) women are pleased when they find out they are pregnant. There are also felt to be difficulties with fitting [74] pregnancy in to general tests of personal injury and physical damage respectively. How much weight do these concerns carry? In itself, the fact that pregnancy is a ‘natural’ event seems irrelevant; after all, so are cancer and arthritis, yet these would undoubtedly qualify as physical damage in an appropriate case.94 However, what really seems to lie behind the word ‘natural’ here is the fact that, 87 1997 SLT 211, 214. 88 n 73 above, 107. 89 ibid, 86. 90 ibid, 76. 91 n 6 above. 92 ibid, 192, 193. 93 ibid, 192-193. 94 See McFarlane, n 73 above, 87 per Lord Hope. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 as Witting puts it, in pregnancy a woman’s ‘physiological integrity’ is not compromised.95 Now from a medical perspective, this is surely correct: pregnancy is not pathological, while cancer and arthritis are. But does this matter from a legal point of view? I would submit that it does not, except in so far as it helps to explain why some women welcome pregnancy while none welcome cancer, and why pregnancy is difficult to fit within orthodox general tests of personal injury and physical damage. In itself, however, the objection carries little, if any, weight, for the simple reason that it tells us nothing about the nature of an unwanted pregnancy as experienced by the woman herself. From her point of view (which is surely the perspective that matters to the law of tort) the pregnancy is unquestionably a violation of her bodily integrity, as Hale LJ forcefully pointed out in Parkinson v St James and Seacroft University Hospital NHS Trust. An unwanted pregnancy seriously limits both a woman’s physical autonomy – her ability to choose what happens to her own body – and her personal autonomy – ‘[her] life is no longer just [her] own but also someone else’s’ – while at the same time subjecting her to considerable pain and discomfort.96 Scientifically, she may be just as ‘healthy’ as she was before, but for her there has been a radical change, and a change for the worse. The fact that the process is physiologically ‘natural’ is unlikely to be of much comfort to her. Similarly, the difficulty with the objection that some women welcome pregnancy is that the perspective is wrong. What matters is not what some (or even most) women think, but what the claimant herself thinks: after all, the question is not whether pregnancy is damage in general, but whether it is damage to this woman.97 Having said that, however, it must be admitted that hidden within this objection is an important point about pregnancy as damage. In most cases, something which is damaging to one would be damaging to all, a broken limb being a case in point. With pregnancy this is not so: since a pregnancy which is desired is incapable of amounting to a personal injury,98 ‘pregnancy may be a personal [75] 95 Thomas points out that in a number of New Zealand court decisions it has been held that since pregnancy is a natural physiological function, it is not a personal injury caused by accident for the purposes of that country’s accident compensation scheme: C. Thomas, ‘Claims for Wrongful Pregnancy and Damages for the Upbringing of the Child’ (2003) 26 UNSWLJ 125, 131. [2001] EWCA Civ 530, [2002] QB 266 at [63]-[68]. See also West, n 7 above, 105: ‘the physical invasion of the body occasioned by a pregnancy … when unwanted, is itself a harm: pregnancy is at best uncomfortable, almost always at some point painful, and at worst dangerous and life-threatening’. 96 See Harriton v Stephens, n 11 above, at [168] per Hayne J (the damage inquiry ‘directs attention to the position of the particular plaintiff, not some hypothetical class of persons of which the plaintiff might be said to be a member’). 97 98 See eg R v Croydon Health Authority (1997) 40 BMLR 40, where the claimant was denied recovery for the cost of bringing up a child which she had wanted, but which she would not have borne if a radiologist had detected an abnormality that meant that pregnancy put her health at risk. According to Kennedy LJ (at 47), ‘when the mother wants both the pregnancy and the healthy child there is simply no loss which can give rise to a claim for damages in respect of Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 injury in some cases but not in others.’99 There is no reason why this should affect the classification of an unwanted pregnancy as actionable damage, however, since although this subjective element does give rise to a couple of complications, neither appears to be that serious. Where the existence of damage depends not only on what takes place, but also on the claimant’s attitude towards it, there is a possibility that a defendant could be held liable for causing an outcome which the claimant considers harmful, but which the defendant could not reasonably have foreseen would be perceived in such terms. 100 Clearly, though, this line of argument is not open to a doctor who has negligently carried out a sterilisation or a vasectomy, nor to the manufacturer of a defective condom. Nor should it matter why the pregnancy is undesired: even if the mother’s motivation for not wanting a child is primarily financial, the pregnancy is still unwelcome, and it is difficult to see why a woman in this position should in some way be disentitled from complaining about its effect on her physical and personal autonomy, and the pain and discomfort it causes.101 The final concern which seems to underlie scepticism about the classification of pregnancy as physical damage or personal injury is the perceived difficulty of fitting it into general definitions of these concepts. In the Limitation Act 1980, for example, it is said that the term ‘personal injuries’ ‘includes any disease and any impairment of a person’s physical or mental condition’.102 Pregnancy is obviously not a disease, but is it an ‘impairment’?103 Again, we could answer that, while it might be thought to be inappropriate and inaccurate to label pregnancy an impairment in general terms, from the point of the claimant in a wrongful conception case, it would be experienced as such, and that should be enough. An alternative response would be that the pregnancy example simply shows that this test, while useful in most contexts, cannot cover all instances of personal injury. Indeed this is implicit in the wording of the statute, which says only that personal injury includes diseases and impairments – in other words, the test is a guide, rather than an exhaustive definition. Similarly, Witting provides a useful general test of ‘physical damage’, which, he says, ‘most often involves either the normal expenses and trauma of pregnancy or the costs of bringing up the child.’ See also Walkin, n 80 above, 1553 per Roch LJ. 99 Mullis, n 83 above, 325. 100 See A. Grubb, ‘Failed Sterilisation: Limitation and Personal Injury’ [1996] Med L Rev 94, 97. 101 cf Walkin, n 80 above, 1553 per Roch LJ. 102 s 38(1). See also Consumer Protection Act 1987, s 45(1), which uses the same formulation, though with the word ‘other’ inserted before the word ‘impairment’, and Unfair Contract Terms Act 1977, s 14 (‘”personal injury” includes any disease and any impairment of physical and mental condition’). Similarly, the US Restatement, Third, Torts: Liability for Physical Harm (Proposed Final Draft No. 1, 2005), § 4 defines physical harm as ‘the physical impairment of the human body or of real property or tangible personal property’, adding (in comment b) that ‘a change in the physical condition of a person’s body or property must be detrimental for the change to count as a harmful impairment’. 103 For an affirmative answer to this question, see Walkin, n 80 above, 1550 per Auld LJ. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 deleterious changes in the physical state or structure of persons or property,’ 104 and then goes on to remark that ‘there was no actual deleterious change in the state of … the claimant’s body’ in McFarlane.105 [76] The possible two responses are the same: first, that from a physiological point of view, the changes may not be deleterious, but from the claimant’s point of view they undoubtedly are; or, alternatively, that the test put forward is not exhaustive – as Witting himself seems to accept, by adding the words ‘most often’ – and does not cover pregnancy. Either way, the use of such general tests ought not to cause us to apply a formal or scientific ‘rationality’ which disconnects tort law from the reality of the claimant’s experience. One possible disadvantage of characterising pregnancy as physical injury is that doing so will serve to reinforce what has been described as ‘the damaging association of pregnancy with illness and vulnerability,’ which is in turn related to the conception of women as the ‘weaker sex’.106 In the discrimination law context, this concern led some commentators to object when the courts at one stage compared the treatment of a pregnant woman with the treatment of a sick man for the purposes of the bar on direct sex discrimination. Fredman, for example, responded that ‘pregnancy is not an illness, and should not be stigmatised as “unhealthy’’’.107 Such a characterisation would also be at odds with an influential school of thought within modern obstetric medicine which has emphasised the ‘natural’ quality of pregnancy and childbirth, and criticised the tendency of other obstetricians to treat it as if it were an illness or medical ‘condition’. These are important considerations, which might cause us to think twice, for example, before acceding to the description of pregnancy as an ‘impairment’ for the purposes of the statutory definition of personal injury. It is submitted, however, that they are not grounds for refusing to classify an unwanted pregnancy as physical damage. This is because injury and illness are clearly distinct concepts, and so by recognising an unwanted pregnancy as an actionable injury the law is in no way endorsing the stigmatisation of pregnancy as a form of ill health. Finally, is the analysis here open to one of the criticisms which Conaghan has levelled at Witting’s approach, namely that his perspective is underpinned by ‘a strict separation of mind and (female) body’108? Conaghan goes on to develop the point as follows: Locating the injury of wrongful conception in a woman’s perception of her state in a way which divorces that perception from her ‘naturally’ pregnant 104 n 6 above, 190. 105 ibid, 196. 106 J. Conaghan, ‘Pregnancy and the Workplace: a Question of Strategy?’ (1993) 20 JLS 71, 75, 82. 107 S. Fredman, ‘Pregnancy and Parenthood Reassessed’ (1994) 110 LQR 106, 113. 108 J. Conaghan, ‘Tort Law and Feminist Critique’ (2003) 56 CLP 175, 191. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 (and thereby harm-less) body, Witting manages to present the injury as nonphysical in origin, a truly remarkable feat which is all the more amazing in being widely shared.109 My analysis also locates the injury of wrongful conception in the claimant’s ‘perception of her state’, since I have argued that pregnancy is only actionable damage when unwelcome, and also that one possible response to arguments that pregnancy does not fall within ‘orthodox’ definitions of personal injury or physical damage is that these fail to take into account the subjective experience of the woman involved. In other words – and as Conaghan herself implicitly [77] acknowledges110 – the harmfulness of pregnancy cannot be separated from the outlook of the woman in question.111 I have not, however, ‘divorced that perception from the claimant’s “naturally” pregnant (and thereby harm-less) body’, since such a divorce presupposes adoption, on one level, of the ‘neutral’ or ‘scientific’ perspective the appropriateness of which I have expressly disavowed. It follows that, on my analysis, although the injury has a subjective aspect to it, the harm is just as ‘real’ and ‘physical’ as a broken limb. (Indeed, an unwanted pregnancy is in one respect more invasive than any other form of personal injury, since the claimant may be expected to follow a particular diet, and to abstain from particular substances and activities, in order not to harm the foetus. No other form of personal injury requires behaviour that puts another’s interests – in this case those of the foetus – above the actor’s own in this way.) Damage and the conventional sum award As we have seen, in Rees v Darlington Memorial Hospital NHS Trust, a majority of the House of Lords held that in wrongful conception cases the parents were entitled to a conventional sum award of £15,000. This award was in addition to the damages payable to the mother in respect of the pregnancy and the birth. The origins of the conventional sum award lie in Lord Millett’s speech in McFarlane. His Lordship took a particularly hard line in that case, rejecting the parents’ principal claim on the grounds that it would be unfair to allow them to recover the cost of upkeep without offsetting the benefits they would receive, 109 ibid. 110 See ibid, 204-205, where Conaghan asks whether, if we were to start with an idea of personhood which corresponded with the female rather than the male body, it would be doubted ‘even for a moment that a negligently induced, involuntary pregnancy would be viewed as invasive’ (emphasis added). 111 Though some radical feminists would disagree: see eg S. Firestone, The Dialectic of Sex (London: Cape, 1970), who argues that pregnancy is inherently injurious, and should be treated as such. This appears to presuppose an extraordinary degree of ‘false consciousness’ on the part of those women who welcome pregnancy, although it may, as Robin West has argued, capture women’s own sense of the injury and danger of pregnancy, even where (in a sense) the pregnancy is desired (‘Jurisprudence and Gender’ (1988) 55 U Chic L Rev 1, 30). In any case, in a legal context, pregnancy can surely only be considered injurious when unwelcome, as indeed the courts have held (see n 98 above). Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 but concluding (unlike the rest of the House) that this argument also applied to the pregnancy and birth, since these were also the ‘price of parenthood’.112 He went on to say: It does not, however, follow that [the claimants] should be sent away emptyhanded. The rejection of their claim to measure their loss by the consequences of Catherine’s conception and birth does not lead to the conclusion that they have suffered none. They have suffered both injury and loss. They have lost the freedom to limit the size of their family. They have been denied an important aspect of their personal autonomy. Their decision to have no more children is one the law should respect and protect. They are entitled to general damages to reflect the true nature of the wrong done to them.113 [78] Lord Millett added that the assessment of the conventional sum should be left to the trial judge, but that in a straightforward case like McFarlane he would not expect it to exceed £5,000. The majority in Rees endorsed the idea of a conventional sum award, but departed from Lord Millett’s approach in three ways: first, the award was to be on top of an award to the mother for the pregnancy and birth; secondly, the sum was to be the same in all cases; and thirdly, the sum was to be fixed at £15,000, three times the amount Lord Millett had suggested. None the less, the reasoning behind the conventional sum award was the same. According to Lord Bingham, the parents in such cases were the victims of a legal wrong, and it would be unfair to deny them any recompense at all beyond the award for the pregnancy and birth. The ‘real loss’ suffered in a case of this kind was the denial of the parent’s (particularly the mother’s) ‘opportunity to live her life in the way that she wished and planned,’ and the conventional award would ‘afford some measure of recognition of the wrong done.’114 Lord Millett, who also sat in Rees, agreed. Compensation for the financial consequences of the defendant’s negligence was ruled out by McFarlane, but ‘a modest award’ would ‘adequately compensate for the very different injury to the parents’ autonomy’.115 What, though, is the nature of the injury which underlies the award of the conventional sum? Since the award is to the parents, and not just the mother, it cannot be parasitical on the pregnancy itself; rather, the gist of the wrong must have been suffered by both the mother and the father. The case law suggests that if the award is for ‘damage’ at all, then the gist must be the parents’ loss of autonomy. In Cattanach v Melchior, the leading Australian decision on wrongful conception, McHugh J and Gummow J described the interest protected by the law of negligence in such cases as the parents’ interest ‘in the planning of their 112 n 73 above, 114. 113 ibid. 114 n 74 above, at [8]. 115 ibid, at [125]. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 family or, as it has been put in the United States, their reproductive future’.116 And, as their Honours pointed out, the injury to that interest has ‘varied elements’.117 In particular, there is the physical impact on the mother, which is compensatable under McFarlane, and the economic impact on the parents, which is not. In addition, though, the wrongful conception deprives the parents of the ability to lead their lives as they would wish, since the bringing up of a child is an immensely time-consuming responsibility, which also radically reduces the choices the parents have when it comes to social activities, holidays and the like.118 One way of explaining the conventional sum award would be to say that it is an attempt to compensate the parents for this loss of autonomy.119 [79] If that is the correct analysis, then it represents a significant departure from established principles of actionable damage, since loss of autonomy would no longer be merely a compensatable aspect of a more orthodox form of damage (as with loss of amenity and personal injury): it would instead amount to an actionable injury in its own right. There is, however, another possible interpretation of the thinking behind the conventional award, which is that the award is not compensatory at all, but is rather (in Weir’s words) ‘a token of the court’s perception that the parents’ rights … have been infringed’.120 Aspects of the reasoning of Lord Bingham and Lord Millett in Rees are certainly consistent with this rights-vindication analysis. The former remarked, for example, that the conventional award was not, and was not intended to be, ‘compensatory’: rather, it afforded ‘some measure of recognition’ of the wrong done’.121 And Lord Millett explicitly invoked the language of rights when justifying the conventional award in Rees: the award was for the denial of the parents’ ‘right to limit the size of their family’, and the loss of the parents’ opportunity to live their lives in the way they wished, ‘whether characterised as a right or a freedom’, was ‘a proper subject for compensation’.122 The rights-vindication analysis of the conventional sum award represents a fundamental challenge to negligence principles, however, since on this view the award does not compensate the claimant for damage she has suffered, but is 116 n 76 above, at [66]. 117 ibid. See also at [27] per Gleeson CJ (a parent/child relationship has ‘multiple aspects and consequences’). As Hale LJ said in Parkinson, ‘The obligation to provide or make acceptable and safe arrangements for the child’s care and supervision lasts for 24 hours a day, 7 days a week, all year round, until the child becomes old enough to take care of himself’ (n 96 above, at [71]). 118 119 In an article written before the House of Lords’ decision in Rees, Priaulx argued persuasively that ‘the loss central to the wrongful conception case is one of reproductive autonomy’ (N. Priaulx, ‘Joy to the World! A (Healthy) Child is Born! Reconceptualising “Harm” in Wrongful Conception’ (2004) 13 Social & Legal Studies 5, 16). 120 T. Weir, A Casebook on Tort (London: Sweet & Maxwell, 10th ed, 2004), 17. n 74 above, at [8]. Lord Nicholls also said (at [17]) that the award was ‘to recognise that in respect of the birth of the child the parent has suffered a legal wrong’. 121 122 ibid, at [123]. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 instead legal recognition of a rights violation, like an award of nominal damages in a trespass case. This challenge must be rebuffed. As we have seen, the damage requirement is central to negligence law, and it follows that, while torts such as battery can vindicate rights in the absence of harm, negligence cannot. The boundaries of actionable damage may be extended if this is thought necessary to give adequate protection to a particular interest (such as personal autonomy), but the requirement of damage cannot simply be done away with altogether. This is not a narrow, conceptualist, argument. The reason why trespass-based torts are actionable per se is that they typically involve direct, intentional conduct of a very particular nature: touching, imprisoning and so forth. Negligence, on the other hand, applies paradigmatically to unintentional conduct, incorporates no requirement of directness, and encompasses a limitless variety of actions or omissions. The damage requirement – coupled with limitations on the kinds of damage which are actionable – is therefore essential if negligence law is not unduly to restrict people’s freedom of action. It follows that the compensatory analysis of the conventional sum is to be preferred. This is almost certainly what the majority in Rees had in mind in any case. After all, both Lord Bingham and Lord Millett referred to the ‘loss’ or ‘injury’ which the parents had suffered when discussing the conventional sum,123 and it is possible that when Lord Bingham denied that the award was compensatory, he meant only that the harm in question was not (unlike the cost of upkeep) readily [80] quantifiable in pecuniary terms.124 As for Lord Millett’s ‘rights talk’, this was probably no more than an unfortunate rhetorical slip.125 Furthermore, Lord Scott, who agreed with the conventional sum award, clearly considered it to be compensatory, describing it as an attempt ‘to put a monetary value on the expected benefit of which [the claimant] was, by the doctor’s negligence, deprived,’126 while Lord Hope, dissenting, asked what basis there could be for the award other than the compensatory principle.127 As his Lordship pointed out, the award was not purely nominal, and yet if the purpose was simply to vindicate a rights violation, then such an award – or at most what Lord Hoffmann referred to in another context as a ‘modest solatium’128 – would surely have been See ibid at [8] per Lord Bingham (referring three times to the parents’ ‘loss’, and once to their ‘injury’) and at [125] per Lord Millett (referring to the ‘injury’ to the parents’ autonomy). 123 See ibid at [8] (emphasis added): ‘The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation.’ It should be emphasised that although a fixed conventional award of this kind is unusual, it is not unique: such a sum is payable as damages for bereavement under the Fatal Accidents Act 1976, and the same technique was employed when damages used to be payable for loss of life expectancy. 124 In Lord Hope’s dissenting speech in Rees he quite rightly pointed out (n 74 above, at [70]) that to speak of a ‘right’ to limit the size of one’s family was to beg a lot of questions, which Lord Millett had left unanswered. In Cattanach, Gleeson CJ was also critical of this so-called ‘right’: n 76 above, at [23]. 125 126 n 74 above, at [148]. 127 ibid, at [74]. 128 Chester v Afshar [2005] 1 AC 134 at [34]. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 sufficient; £15,000, by contrast, is a significant sum of money (roughly threefifths of the average annual salary), the award of which must have been envisaged as redress for a substantive loss. The obvious conclusion, therefore, is that while Lord Steyn was correct to describe the conventional sum award as a ‘radical and most important development’ in his dissenting speech in Rees,129 its significance is that it amounts to recognition of diminished autonomy as a form of actionable damage, not that it does away with the requirement of damage altogether. EDUCATIONAL NEGLIGENCE Actions against local education authorities for defective educational provision are a relatively recent phenomenon. Claims of this kind began to surface in the law reports in the early 1990s, and the issues they raised were first considered by the House of Lords in X (minors) v Bedfordshire County Council,130 where three of the five appeals concerned alleged defects in the education of children with special educational needs. The actions were brought against the education authorities themselves, and also against employees for whom they would be vicariously liable. The House held that, for public policy reasons, the direct actions based on the authorities’ functions under the Education Acts should be struck out as disclosing no reasonable cause of action. However, a direct action arising out of advice provided by a psychology service set up by one authority was allowed to proceed to trial, as were the claims against employees such as educational psychologists and teachers. More generally, Lord Browne-Wilkinson said that ‘a school which accepts a pupil assumes responsibility not only for his physical well-being, [81] but also for his educational needs’.131 A few years later, the issue came before the House again, in Phelps v London Borough of Hillingdon.132 This time, a seven-strong panel held that those employed by a local education authority to carry out professional services pursuant to the authority’s statutory duties owed a duty of care to the children affected by their work, and that, prima facie, the authority would be vicariously liable for the breach of this duty. Whether a direct action would lie in these circumstances was left open. Of all the areas of law considered in this paper, it is in the educational negligence case law that the most extended analysis of the actionable damage issue is to be found. Although the House of Lords rather glossed over the point in X (minors) and Phelps,133 the Court of Appeal has addressed it more directly, and courts at all 129 n 74 above, at [43]. 130 [1995] 2 AC 633. 131 ibid, at 395. 132 [2001] 2 AC 619. In X (minors), Lord Browne-Wilkinson’s responded to a defendant’s submission that the damage claimed was not recoverable by saying that it was not appropriate to decide the issue at the striking-out stage: n 130 above, at 764. 133 Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 levels have been required specifically to consider the nature of the injury in educational negligence cases for limitation purposes. Before we turn to consider these authorities in more detail, two preliminary points should be made. The first is that the actionable damage point is only one issue among many raised by educational negligence cases; hence, even if it is concluded that the type of harm which underpins such claims should be recognised as actionable damage in negligence it does not necessarily follow that recovery should be permitted. The other point is that cases involving allegations of failure to alleviate specific learning disorders (such as dyslexia) must be distinguished from more general claims of impaired intellectual development. Since it is clear that all children are owed duties of care in respect of the educational provision made for them, the issue of damage will be considered in both types of case. It will be helpful to deal first with the learning disorders issue, since thus far this is where the case law spotlight has fallen. In X (minors), for example, the three education appeals heard by the House of Lords all concerned pupils with learning disorders: one claimant sought recovery for the cost of attending a feepaying school, an expense allegedly incurred as a result of a failure by the defendant to make provision for his numeracy difficulties, the second also sought to recover the cost of private tuition, as well as damages for impaired intellectual and personal development and distress, and the third claimed damages for diminished employment prospects and behavioural problems, which he blamed on the defendant’s failure to diagnose and treat his dyslexia. In Phelps too, the appeals involved children with special educational needs: three of the claimants were dyslexic, and the fourth suffered from Duchenne muscular dystrophy. One of the dyslexia cases (Phelps itself) had gone to trial, and the claimant had been awarded general damages of £12,500 and damages of just over £30,000 for loss of earnings and the cost of tuition. The conclusion which has emerged from this case law is that the continuing effects of a failure to ameliorate a condition such as dyslexia are themselves a form of actionable damage. The courts have generally taken the view that dyslexia is a [82] condition of constitutional origin, and that although the underlying physiological causes are untreatable, the adverse consequences of the condition can be substantially mitigated by early diagnosis, followed by appropriate educational provision. Furthermore, while the defendant in these cases is not accused of worsening the claimant’s condition, but only of failing to improve it, this has not in itself been seen as a problem, any more than it would be in the medical negligence context.134 As for the condition itself, when the three education appeals in X (minors) came before the Court of Appeal, Evans LJ could see no reason why such a condition ‘should not be recognised as a form of injury for which compensation may be awarded,’135 and Lord Slynn said in Phelps that ‘failure to diagnose a congenital condition [such as dyslexia] and to take appropriate action as a result of which a child’s level of achievement is reduced’ 134 See E (a minor), n 9 above, 877-878 per Evans LJ. 135 ibid, 877. See also at 874 per Sir Thomas Bingham MR. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 may constitute ‘damage for the purpose of the common law.’136 We should note, however, that support for this position has not been universal: in the Court of Appeal in Phelps, Stuart-Smith LJ said that dyslexia was not itself an injury and that he did not see how failure to ameliorate or mitigate its effects could be an injury either.137 Clarification as to the nature of this form of actionable damage has been provided by an overlapping line of authority concerning the classification of educational negligence cases for the purposes of limitation and discovery. In Phelps, the House of Lords held that a claim for failure to mitigate the effects of dyslexia was ‘a claim in respect of personal injuries’ under section 33 of the Supreme Court Act 1981, a provision relating to pre-action disclosure – according to Lord Slynn, having regard to the purpose of the provision it would be wrong to adopt ‘an over-legalistic view’ of what amounted to personal injuries.138 The same approach has been taken in the limitation context. In Robinson v St Helens Metropolitan Borough Council,139 the Court of Appeal held that a claim in respect of failure to diagnose and make provision for dyslexia was subject to the three-year limitation period applicable in personal injury cases, and this was subsequently affirmed by the House of Lords in Adams v Bracknell Forest DC.140 The leading speech in Adams was given by Lord Hoffmann, who described dyslexia as a congenital condition, presumably of neurological origin, the ‘distinctive feature’ of which was ‘the combination of average or better general mental ability with severe and long-term difficulty in reading, writing and spelling.’141 His Lordship went on to say that undiagnosed dyslexia had been treated by the courts as ‘a mental disability (not being able to read and write properly) which ought to have been ameliorated,’ and that ‘in a post-Cartesian world’ such a claim was for personal injury.142 Baroness Hale agreed: undiagnosed dyslexia was ‘an impairment of the claimant’s mental [83] condition’ which could sound in damages for loss of amenity even if the major part of any claim would be for consequential financial loss.143 Once again, though, it is noteworthy that the prevailing analysis of the classification issue has met with a degree of scepticism. In Robinson, Sir Murray Stuart-Smith came to the conclusion that claims in respect of undiagnosed dyslexia were subject to the limitation rules pertaining to personal injury ‘not 136 n 132 above, 654. 137 [1999] 1 WLR 500, at [44]. It followed that the action was not an action for personal injury, but for economic loss (ibid). 138 n 132 above, 664. 139 [2002] EWCA Civ 1099, [2002] ELR 681. 140 [2004] UKHL 29, [2005] 1 AC 76. 141 ibid, at [2]. 142 ibid, at [10]. 143 ibid, at [80]. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 without considerable hesitation,’144 and Brooke LJ said that while he understood why the House of Lords in Phelps wished these cases to fall within the general parameters of the personal injuries limitation regime, they were not concerned with ‘vindicating a person’s physical or mental integrity in the traditional sense’.145 Similarly, in Adams Lord Scott remarked that although he felt bound by the decision in Phelps, he did not himself think that ‘the deprivation of the benefit of literacy’ fitted comfortably within the concept of a personal injury, since it was not (in his view) ‘an impairment of a physical or mental state’. 146 This scepticism appears not to be borne out by the scientific literature, however. Most researchers now seem to accept that dyslexia is a congenital condition characterised by a phonological processing deficit, which in turn arises out of some impairment of the individual’s phonological processing ability.147 Moreover, while it is true that there are a number of dyslexia researchers who might loosely be termed ‘sceptics’, their scepticism is not so much directed at the idea that dyslexia is a condition of biological origin as at the idea that dyslexia should be defined by reference to a discrepancy between general intelligence and reading ability: in a nutshell, their argument is that there is no pedagogical justification for distinguishing between poor readers with high IQs and other poor readers, not least because there is no reason to expect IQ and reading ability to correlate in the first place.148 The rights and wrongs of that debate need not concern us here, however – what matters for our purposes is that both sides of the debate seem to agree that poor reading ability is probably the result of a phonological deficit of some kind, and that this deficit is likely to be of congenital origin. To the extent that there is indeed a scientific consensus along these lines, the legal characterisation of untreated dyslexia as a [84] form of actionable damage – and more particularly, a form of personal injury – would appear to be justified. What about the second type of case, where the claimant does not suffer from a congenital condition like dyslexia, but is none the less complaining that the 144 n 139 above, at [24]. 145 ibid, at [37]. 146 n 140 above, at [68]. 147 See generally, M. Snowling, Dyslexia (Oxford: Blackwell, 2nd ed, 2000), ch 8. See also U. Firth, ‘Paradoxes in the Definition of Dyslexia’ (1999) 5 Dyslexia 192, 211 (‘The consensus is emerging that dyslexia is a neuro-developmental disorder with a biological origin, which impacts on speech processing with a range of clinical manifestations’). But cf A.W. Ellis, S.J.P. McDougall and A.F. Monk, ‘Are Dyslexics Different? IV. In Defence of Uncertainty’ (1997) 3 Dyslexia 12, questioning the phonological deficit hypothesis. 148 It was an argument along these lines that formed the basis of the much publicised Dispatches television programme ‘The Dyslexia Myth’ (Channel 4, 8 September 2005). For a summary of the arguments presented in that programme, see J. Moorhead, ‘Is Dyslexia Just a Myth?’, The Guardian, 7 September 2005, and for more scientific versions of the argument, see A.W. Ellis, S.J.P. McDougall and A.F. Monk, ‘Are Dyslexics Different? I. A Comparison Between Dyslexics, Reading Age Controls, Poor Readers and Precocious Readers’ (1996) 2 Dyslexia 31; and K. Stanovich, ‘Toward a More Inclusive Definition of Dyslexia’ (1999) 5 Dyslexia 154. For an overview of the issues, see Snowling, n 147 above, ch 2. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 education provided by the defendant was in some way inadequate? Although Lord Nicholls made it clear in Phelps that teachers owe duties of care to all their pupils in the discharge of their educational responsibilities, and not just those with learning disorders,149 it does not necessarily follow that educational underdevelopment ought to be recognised as a form of actionable damage in the absence of a learning disorder. On the contrary, it is submitted that it would in fact be a mistake to regard intellectual impairment per se as actionable damage, and that this position is consistent with the relevant authorities. In E (a minor) v Dorset County Council, for example, Evans LJ expressed the provisional view that a claimant without special educational needs who brought an educational negligence claim would be unable to establish any damage other than economic loss.150 Furthermore, the reasoning of the House of Lords in Adams v Bracknell Forest DC indicates that impaired educational development is not per se a form of ‘personal injury’. Consider Lord Hoffmann’s analysis of the dyslexia issue: [O]n what basis can the lack of the ability to read and write be a personal injury? We know very little about the way the brain works. Some mental disabilities are caused by congenital and irremediable defects in the brain circuitry. But the brain has the most remarkable capacity to compensate for defects or injuries by calling upon other parts of the circuitry. Compare, for example, the recoveries people make from strokes which have irreversibly damaged parts of the brain. Such people, with the aid of physiotherapy and other treatment, appear to get better. Other parts of the brain acquire the ability to do the work of the damaged tissue … It would be drawing too fine a distinction to say that the neglect caused no injury because nothing could be done to repair the congenital damage in the brain circuitry and the other parts of the brain which would have to be trained to compensate had never been injured. What matters is whether one has improved one’s ability to read and write. Treating the inability to do so as an untreated injury originally proceeding from other causes produces a sensible practical result.151 This passage suggests that the inability to read and write constitutes personal injury only where its origins lie in a ‘mental disability’ of some kind, and where the defendant has negligently failed to help the claimant to compensate for that disability by providing her with appropriate assistance. It must follow that impaired educational development is not generally a form of personal injury.152 And while this does not necessarily forestall its characterisation as actionable damage, it is difficult to see the case for recognising ‘the “injury” of ignorance’153 149 n 132 above, 667. 150 n 9 above, 886-887. 151 n 142 above, at [20]. This also appears to be the import of Lord Scott’s analysis: see especially at [68]. See also von Bar, n 76 above, para 283 (‘It is extremely doubtful whether disruption of personality development can be properly described as personal injury’). 152 153 Donohue v Copiague Union Free School District (1978) 407 NYS 2d 874, 880. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 [85] as a sui generis category. The ‘harm’ in question is nebulous in the extreme, not least because while a physically injured person can be contrasted with a healthy one, there is no standard level of educational achievement with which the claimant’s can be compared. How, for example, would one go about identifying the time at which the damage occurred for limitation purposes? It will also be very difficult to establish causation in cases of this type, since, as Lord Nicholls pointed out in Phelps, a child’s ability to learn is determined in part by factors over which a school has no control, such as his emotional health and his home environment.154 Similar difficulties may of course also arise in the learning disorders context, but they are likely to be less severe, since at least there the court is considering the effect on a child’s educational progress of ‘an error in diagnosing and treating a specific problem.’155 A related complication concerns the quantum of damages. If the connection between teaching and educational advancement is murky, so too is the link between the latter and success in one’s working life. Awards for loss of earnings will therefore be highly speculative. Again, the problem arises in the learning disorder cases as well,156 but in those the court has only to consider the impact of a specific learning difficulty, and in that context there is also the option – not, perhaps regrettably, taken up by the courts – of limiting damages to the less speculative cost of remedial tuition.157 Finally, the reason Lord Nicholls gave for extending the duty of care to all pupils – that it would be ‘extraordinary’ if teachers owed a duty to some pupils but not others158 - is (with respect) unconvincing, since his Lordship was making the common mistake of speaking in general terms about a ‘duty of care’ without identifying the type of harm in respect of which the duty is owed. Once it is appreciated that the ongoing effects of a congenital learning disorder are a specific form of injury, distinguishable from impairment of educational development generally, any apparent inconsistency falls away: it is no more illogical to say that teachers owe a duty of care in respect of learning disorders, but not educational advancement generally, than it is to say that a construction firm owes a factory owner a duty of care in respect of physical damage to property, but not in respect of pure economic loss.159 In any case, it is hard to see why the law of tort should not single out children with learning disorders for special treatment when policy makers and educationalists do so as a matter of course. 154 n 132 above, 668. See also Peter W v San Francisco Unified School District (1976) 60 Cal App 3d 814, 824: ‘[There are] a host of factors which affect the pupil subjectively … They may be physical, neurological, emotional, cultural, environmental ….’ D. Fairgrieve, ‘Pushing Back the Boundaries of Public Authority Liability: Tort Law Enters the Classroom’ [2002] PL 288, 306. 155 156 In the Court of Appeal in Phelps, Stuart-Smith LJ described the task of assessing future loss of earnings and general damages in such a case as ‘virtually impossible’: n 137 above, 526. See also at 530, per Otton LJ. 157 See Fairgrieve, n 155 above, 306. 158 n 132 above, 667. 159 As held in Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 If, as is suggested, the law ought not to recognise educational underdevelopment as a form of damage, then an educational negligence claimant without a learning disorder would have to bring her claim on the basis of an established head of actionable damage, such as economic loss, or psychiatric harm amounting to a recognised psychiatric illness. The latter is perhaps unlikely, though not out of [86] the question;160 as for economic loss, the claimant would have to establish that the defendant owed her a duty in respect of economic loss. Although it is questionable whether the pupil/teacher relationship should be construed as giving rise to an assumption of responsibility under the principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd,161 it would be premature to rule out the possibility, particularly in the light of the emphasis the House of Lords placed on the special skills of teachers and other educational professionals in Phelps.162 In any case, such an extension of Hedley Byrne is of little significance as regards the subject-matter of this paper, since the gist of the action would then be the pupil’s financial loss, as opposed to some novel notion of ‘impaired educational development’. CONCLUSION The conclusions I have arrived at in this paper on new forms of damage in negligence can be summarised as follows. First, negligent imprisonment merits compensation, at least in more serious cases, and the best way to give such redress is through recognition of imprisonment as actionable damage in negligence, rather than extension of the tort of false imprisonment. Second, an unwanted pregnancy is a form of personal injury, albeit an unusual one, in that the existence of the injury is contingent on the perspective of the woman involved. Third, the conventional sum awarded in wrongful conception cases is best analysed as compensation for the diminution of the parents’ autonomy brought about by the defendant’s negligence. And, finally, while an undiagnosed and untreated learning disorder is now treated by the courts as a form of personal injury, in the absence of such a disorder educational underdevelopment ought not to be recognised as actionable damage in its own right. This survey also enables us to identify a number of general conclusions relating to the recognition of new categories of actionable damage. Some of these can be extrapolated from one of the examples we have looked at, standing alone. 160 In Gower v London Brorough of Bromley [1999] ELR 356, for example, the claimant attributed his clinical depression to the poor education he had received at the defendant’s hands. 161 162 [1964] AC 465. It is perhaps noteworthy in this connection that the example Lord Nicholls gave in Phelps of an educational failure outside the special needs context was of a teacher teaching the wrong syllabus for an external examination, and thereby causing ‘provable financial loss’: n 132 above, 667. It is also worth noting that in Phelps Lord Slynn emphasised (ibid, 653) the professional obligations of teachers, educational psychologists and the like, although his Lordship made no direct reference to the Hedley Byrne principle, and these comments were made in the context of what must now be regarded as actions for personal injury. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 The analysis of the negligent imprisonment issue demonstrates, for example, that in some types of case the decision whether to recognise a given harm as actionable damage in negligence may be influenced by consideration of the appropriate boundaries of another cause of action, while the educational negligence example illustrates that it may also be influenced by likely difficulties in establishing causation and in quantifying damages. Meanwhile the pregnancy example indicates that in some types of case characterisation of an occurrence as damage may depend upon the perspective of the individual claimant, though it must be remembered that, while this is perfectly acceptable in the wrongful conception [87] scenario (where the defendant is inevitably aware of the claimant’s likely response to pregnancy), a subjective element could give rise to complications in other contexts, where the defendant might not always be in a position accurately to predict the claimant’s reaction to the event in question. Four other general points can be made, this time drawing on more than one of the example areas discussed. The first is that whereas previously autonomy was only protected indirectly by the law of negligence (via claims for personal injury and so forth), increasingly loss of autonomy appears to be being accorded recognition as a form of actionable damage in its own right. The conventional sum award in wrongful conception cases is an example of this phenomenon, as is the case law allowing recovery for negligent imprisonment (a person’s freedom of movement being, of course, an aspect of their autonomy). Since autonomy is a very important interest, this development is to be welcomed, although if negligence liability is to be kept within acceptable limits, protection can only be accorded, as at present, to certain derivative autonomy interests – freedom of movement, reproductive autonomy and so forth – rather than to autonomy in the round.163 The second point is that some of the new forms of actionable damage are difficult to quantify in monetary terms. The autonomy-based cases are good examples: it is not easy to arrive at an appropriate sum of compensation for a period of imprisonment, or for the diminished autonomy brought about by an unwanted pregnancy. These problems should not be exaggerated, however. The difficulties are no greater than those involved in assessing damages for pain and suffering or loss of amenity in a physical injury case, or for discomfort or inconvenience in nuisance. Moreover, the courts have long been required to calculate damages for loss of liberty in cases of false imprisonment, 164 while in the wrongful conception scenario the difficulties of quantification have already been resolved by the decision to award a conventional sum. Indeed, if anything, this aspect of the recent expansion of the categories of actionable damage 163 Similarly, Raz has argued (J. Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 247) that although the moral ideal of personal autonomy may serve to justify and to reinforce various derivative rights, there is no such thing as a right to personal autonomy as such, since it would be unduly burdensome on the members of society at large if they were dutybound to provide the right-holder with the conditions necessary for an autonomous life. 164 In practice, the award is usually made by a jury, though its discretion is not unlimited: see further, Thompson v Commissioner of Police of the Metropolis [1998] QB 498. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 should be welcomed as evidence that the courts are not privileging interests interference with which is readily translated into monetary terms – such as property interests – over equally important interests – such as freedom of movement – of which the same cannot be said.165 The third point concerns negligence as a mechanism for the vindication of rights. Hickman has argued that the expansion of the categories of actionable harm ‘can be seen as an unstated response to pressures from litigants wanting to vindicate rights through actions in negligence.’166 There is certainly some truth in [88] this observation: we have seen, for example, that negligence claims have been used to vindicate the claimant’s right to freedom of movement, and it could also be argued that educational negligence litigation is designed to vindicate a broad social welfare right, the right to education. On the other hand, the very existence of the requirement of actionable damage limits the utility of negligence as a rights-vindication mechanism. This became apparent in the discussion of the rights-vindication analysis of the conventional sum award in wrongful conception cases, and the same conclusion could be drawn from the difficulties surrounding the imposition of liability for negligent imprisonment in cases in which the claimant was unaware of her imprisonment, or had no wish to leave the place of her confinement, since although in such cases it seems plausible to argue that there has been a technical violation of the claimant’s right to freedom of movement, requiring the payment of nominal damages, it seems much less plausible to argue that the claimant has sustained actual damage, and hence deserves a substantial damages award. It follows that if the law’s aim is to provide a comprehensive mechanism for the vindication of a right, it may be necessary to employ a cause of action other than negligence. The final point is the importance of flexibility. Both judges and academic commentators have occasionally succumbed to the temptation to shoehorn novel forms of harm into existing categories of actionable damage, by, for example, classifying wrongful conception as a form of pure economic loss. Moreover, the courts have sometimes had little choice but to squeeze a square peg into a round hole, since they have been required to apply statutory provisions that differentiate between ‘actions for personal injuries’ and actions for other types of harm in cases where it is unclear on which side of that line the damage in question falls.167 The recent expansion of the categories of actionable In Harriton v Stephens, n 11 above, Kirby J remarked (at [83]) that ‘Merely because the damage is imperfectly translated into monetary terms will not necessarily preclude a court from awarding compensation in respect of that damage. It is a mistake to think otherwise.’ 165 166 T.R. Hickman, ‘Tort Law, Public Authorities and the Human Rights Act 1998’ in D. Fairgrieve, M. Andenas and J. Bell (eds), Tort Liability of Public Authorities in Comparative Perspective (London: BIICL, 2002), 37. 167 Examples of such provisions are Limitation Act 1980, s 11; Consumer Protection Act 1987, s 5(1); Unfair Contract Terms Act 1977, s 2(1). The same distinction used to be drawn in the preaction disclosure context (see above, text to n 138), but the provision in question (Supreme Court Act 1981, s 33(2)) was amended when the Civil Procedure Rules were brought in, and now applies to all proceedings, not only those for personal injury and death. Donal Nolan, ‘New Forms of Damage in Negligence’ (2007) 70 Modern Law Review 59-88 damage calls into question this rather unsophisticated statutory distinction, and, more generally, requires that tort lawyers pay heed to Conaghan’s warning against an ‘excessive deference to coherence’, which she describes as ‘a strong commitment to maintaining the integrity of those categories and classifications with which tort law is already imbued, and a reluctance to embrace arguments or adopt positions which might undermine tort’s basic architecture.’168 The origins of such inflexibility are no doubt multifaceted, but it seems plausible to suppose that the tendency to think only in terms of well-established categories of actionable damage is to some extent the product of an orthodox analytical framework for negligence in which the issue of actionable damage is all but ignored. By bringing that issue out into the open, therefore, we can help to ensure that in future questions concerning the limits of actionable damage meet with responses that are not only more transparent, but also more imaginative. 168 n 108 above, 208.