Negligence - Actionable Damage
Physical Harm
Overview of Negligence Structure:
Recall: Who can sue whom, in what tort, for what damage, and are there any defences?
1. Actionable Damage (not ‘actual’)
2. Duty of Care
3. Breach of Duty
4. Causation
1. Factual Causation
2. Legal Causation/ Remoteness
Elements of negligence:
• Temporal progression is how things
happen in reality (in time).
• When answering a legal question, we use a
different structure (Legal Analysis of the
Issue)
• Gregg and Scott = doctor/patient relationship.
o Cancer case, doctor was late in
diagnosing patient with cancer.
• Cane = ‘to provide guidance to individuals
about how they may and ought to behave
in their interactions with others [and] to
provide protection for certain interests of
individuals.’
o Not all interest are protected.
Actionable damage:
• Statutory definition of Physical Harm:
• Limitation Act 1980 s.38(1):
“personal injuries” includes any disease and any impairment of a person’s physical or mental condition,
and “injury” and cognate expressions shall be construed accordingly;
• Common law definition – the De Minimis Non Curat Lex rule
• Lord Hoffmann in Rothwell v Chemical and Insulating Co (2008) 1 AC 281
o ‘a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an
abstract concept of being worse off, physically…so that compensation is an appropriate remedy. It does
not mean simply a physical change, which is consistent with making one better, as in the case of a successful
operation, or with being neutral, having no perceptible effect upon one’s health or capability.’
o ‘Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques
are not compensable damage. Neither do the risk of future illness or anxiety about the possibility of that
risk materialising amount to damage for the purpose of creating a cause of action, although the law allows
both to be taken into account in computing the loss suffered by someone who has actually suffered some
compensable physical injury and therefore has a cause of action.’
o ‘…the policy of the law is not to entertain a claim for damages where the physical effects of the injury are no
more than negligible…The policy does not provide for clear guidance as to where the line is to be drawn
between effects which are and are not negligible. But it can at least be said that an injury which is without
any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is
harmful has no consequences that will not attract an award of damages. Damages are given for injuries that
cause harm, not for injuries that are harmless…’
Property damage:
• Common law definition – Lord Brandon in The Aliakmon
Physical Harm
Overview of Negligence Structure:
Recall: Who can sue whom, in what tort, for what damage, and are there any defences?
1. Actionable Damage (not ‘actual’)
2. Duty of Care
3. Breach of Duty
4. Causation
1. Factual Causation
2. Legal Causation/ Remoteness
Elements of negligence:
• Temporal progression is how things
happen in reality (in time).
• When answering a legal question, we use a
different structure (Legal Analysis of the
Issue)
• Gregg and Scott = doctor/patient relationship.
o Cancer case, doctor was late in
diagnosing patient with cancer.
• Cane = ‘to provide guidance to individuals
about how they may and ought to behave
in their interactions with others [and] to
provide protection for certain interests of
individuals.’
o Not all interest are protected.
Actionable damage:
• Statutory definition of Physical Harm:
• Limitation Act 1980 s.38(1):
“personal injuries” includes any disease and any impairment of a person’s physical or mental condition,
and “injury” and cognate expressions shall be construed accordingly;
• Common law definition – the De Minimis Non Curat Lex rule
• Lord Hoffmann in Rothwell v Chemical and Insulating Co (2008) 1 AC 281
o ‘a claim in tort based on negligence is incomplete without proof of damage. Damage in this sense is an
abstract concept of being worse off, physically…so that compensation is an appropriate remedy. It does
not mean simply a physical change, which is consistent with making one better, as in the case of a successful
operation, or with being neutral, having no perceptible effect upon one’s health or capability.’
o ‘Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques
are not compensable damage. Neither do the risk of future illness or anxiety about the possibility of that
risk materialising amount to damage for the purpose of creating a cause of action, although the law allows
both to be taken into account in computing the loss suffered by someone who has actually suffered some
compensable physical injury and therefore has a cause of action.’
o ‘…the policy of the law is not to entertain a claim for damages where the physical effects of the injury are no
more than negligible…The policy does not provide for clear guidance as to where the line is to be drawn
between effects which are and are not negligible. But it can at least be said that an injury which is without
any symptoms at all because it cannot be seen or felt and which will not lead to some other event that is
harmful has no consequences that will not attract an award of damages. Damages are given for injuries that
cause harm, not for injuries that are harmless…’
Property damage:
• Common law definition – Lord Brandon in The Aliakmon
