New Forms of Damage in Negligence

Abstract

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.