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Risk and the damage requirement in negligence liability

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journal contribution
posted on 2014-05-21, 15:19 authored by Gemma Turton
Applying the Fairchild exception in Barker, Lord Hoffmann sought to justify apportionment of liability by reformulating the gist of the negligence action as the risk of mesothelioma rather than the mesothelioma itself. This paper examines the notion of risk to show that it cannot coherently be recognised as damage. By distinguishing risk from the related concept of probability, it is apparent that risk is a forward-looking concept that is incompatible with the role in which it is cast in the backward-looking causation inquiry when mesothelioma is an essential ingredient of liability. This paper goes on to consider whether 'pure' risk could form the gist of a negligence action and suggests that it lacks the moral significance to constitute damage. Furthermore, the damage requirement would be subsumed into the breach inquiry, effectively being lost as a distinct element of the negligence inquiry. This is incompatible with the traditional loss-based model of negligence.

History

Citation

Legal Studies, 2014, doi: 10.1111/lest.12043

Author affiliation

/Organisation/COLLEGE OF ARTS, HUMANITIES AND LAW/School of Law

Version

  • AM (Accepted Manuscript)

Published in

Legal Studies

Publisher

Wiley

issn

0261-3875

eissn

1748-121X

Copyright date

2014

Available date

2016-02-20

Publisher version

http://onlinelibrary.wiley.com/doi/10.1111/lest.12043/abstract;jsessionid=9F9365396D60E59796F712D83F0BFE0F.f04t01

Notes

The file associated with this record is embargoed until 24 months after the date of publication. The final published version may be available through the links above.

Language

en

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