Judicial reasoning and the concept of damage: Rethinking medical negligence cases

Abstract

Damage is the GIST of the action in negligence but is often subsumed within other headings of this tort such as duty of care, quantum of damages and causation. This article examines three important decisions where new forms of damage, such as the costs of raising a healthy child or loss of autonomy, have been implicitly recognized or rejected - McFarlane v. Tayside Health Board, Rees v. Darlington and Chester v. Afshar - and suggests that the lack of separate scrutiny of the damage concept in such cases is leading to poor reasoning and questionable results that threaten to undermine the coherence of the tort of negligence. Methods of restoring clarity to this tort are then addressed.