Criticisms of tort liability 3
Feminist criticism:
- Harms that can be said to ‘count’ (i.e. are actionable in tort)
- Standards by which a person’s conduct is measured (reasonable person)
Conaghan and Mansell in ‘the wrongs of tort) –
‘…[tort] embodies and reflects viewpoints which are informed by gender stereotypes or which
invoke gendered assumptions about the respective role, capabilities and aspirations of men and
women. Moreover, in most cases, the point of reference upon which law is constructed is male –
law it is said, expresses and reinforces a primarily male point of view.’
Definition of personal injury = Limitations act 1980 s38 (1) – ‘any disease and any impairment of a
person’s physical or mental condition’
Wrongful conception case studies:
- McFarlane v Tayside Health Board (negligent misstatement)
- Parkinson v St James NHS Trust (procedure done negligently) – got pregnant after
sterilisation process and baby born with disability
- Rees v Darlington Memorial Hospital NHS Trust (procedure done negligently) – woman blind
underwent sterilisation procedure, done negligently and she fell pregnant but gave birth to
healthy child.
→ The harm they state to have suffered is pregnancy and economic loss.
Question is whether pregnancy fits definition in s38 as personal injury or is it a more harmless
biological function that cannot constitute damage/harm (Priaulx, the harm paradox)
McFarlane v Tayside Health Board
- Lord Hope ‘…the loss, injury, and damages which she has suffered as a result of a harmful
event …[although] it may seem odd to describe the conception as harmful.’
- Lord Slynn ‘Unwanted pregnancy was not a harm or injury in the ‘ordinary sense of the
words’
Wilkin v South Manchester HA [1995]
- Roch LJ ‘I have some difficulty in perceiving a normal conception, pregnancy and the birth of
a healthy child as ‘any disease or any impairment of a person’s physical or mental condition’
in cases where the only reasons for the pregnancy and subsequent birth being unwanted
are financial.’
Judges say that there is no harm, theorists say that there is a presumption that a woman’s
physiological state changes during pregnancy.
Parkinson v St James and Seacroft University Hospital NHS Trust (2002)
Lady Hale’s comment on loss of autonomy through negligence: not as straightforward as s38
1) Physical autonomy (Collins v Wilcock)
2) Right to not be subject to bodily injury
Feminist criticism:
- Harms that can be said to ‘count’ (i.e. are actionable in tort)
- Standards by which a person’s conduct is measured (reasonable person)
Conaghan and Mansell in ‘the wrongs of tort) –
‘…[tort] embodies and reflects viewpoints which are informed by gender stereotypes or which
invoke gendered assumptions about the respective role, capabilities and aspirations of men and
women. Moreover, in most cases, the point of reference upon which law is constructed is male –
law it is said, expresses and reinforces a primarily male point of view.’
Definition of personal injury = Limitations act 1980 s38 (1) – ‘any disease and any impairment of a
person’s physical or mental condition’
Wrongful conception case studies:
- McFarlane v Tayside Health Board (negligent misstatement)
- Parkinson v St James NHS Trust (procedure done negligently) – got pregnant after
sterilisation process and baby born with disability
- Rees v Darlington Memorial Hospital NHS Trust (procedure done negligently) – woman blind
underwent sterilisation procedure, done negligently and she fell pregnant but gave birth to
healthy child.
→ The harm they state to have suffered is pregnancy and economic loss.
Question is whether pregnancy fits definition in s38 as personal injury or is it a more harmless
biological function that cannot constitute damage/harm (Priaulx, the harm paradox)
McFarlane v Tayside Health Board
- Lord Hope ‘…the loss, injury, and damages which she has suffered as a result of a harmful
event …[although] it may seem odd to describe the conception as harmful.’
- Lord Slynn ‘Unwanted pregnancy was not a harm or injury in the ‘ordinary sense of the
words’
Wilkin v South Manchester HA [1995]
- Roch LJ ‘I have some difficulty in perceiving a normal conception, pregnancy and the birth of
a healthy child as ‘any disease or any impairment of a person’s physical or mental condition’
in cases where the only reasons for the pregnancy and subsequent birth being unwanted
are financial.’
Judges say that there is no harm, theorists say that there is a presumption that a woman’s
physiological state changes during pregnancy.
Parkinson v St James and Seacroft University Hospital NHS Trust (2002)
Lady Hale’s comment on loss of autonomy through negligence: not as straightforward as s38
1) Physical autonomy (Collins v Wilcock)
2) Right to not be subject to bodily injury
