The Protection of Personal Interests – Evolving Forms of Damage in Negligence
(2015) 27 SAcLJ 643
This article considers the extent to which courts in various jurisdictions have, in recent years, widened the scope of recoverable damage in negligence actions involving the invasion of personal interests. Thus, for example, awards with respect to unwanted pregnancies in wrongful conception situations straddle the line between physical injury and mere inconvenience or temporary discomfort, and conventional awards for the disruption to parents’ lives in such situations also fall outside what would once have been defined as recognisable damage. In other medical negligence scenarios, too, compensation is now awarded in circumstances where the lack of definable damage would, in the past, have prevented successful claims, and in the separate field of negligently imposed detention there are also suggestions that deprivation of liberty may be redefined as inherently recoverable loss. This more liberal approach to damage – which is still in its infancy and has yet to be adopted in the majority of personal interest situations – appears to be based on an (often implicit) acknowledgment that the need to limit the scope of recognisable harm is trumped by the desirability of vindicating personal rights and the undesirability of creating hollow duties.