‘Theorizing Damage Through Reproductive Torts’

Nicky Priaulx, Injuries That Matter: Manufacturing Damage in Negligence, available at BePress. Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of ‘damage’ (sometimes referred to as ‘injury’ or ‘harm’) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, ie, those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the US, controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm ‘can do more work than it is presently being made to do’, inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage … (more)

[Martha Chamallas, JOTWELL, 29 July]

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