PHYSICAL DAMAGE IN NEGLIGENCE

Abstract

BEING an action on the case, it has long been supposed that negligence is consummated only upon the occurrence of damage. Physical damage ordinarily occurs where there is some change in the state or structure of a person’s body, or where there is some change in the state or structure of tangible property. The author argues that courts have, in recent wrongful conception and contamination cases, widened the orthodox notion of what constitutes physical damage. The courts have employed an ordinary bystander test in order to determine whether particular failures of care, arising in circumstances of high or unnecessary risk of physical harm, should be treated as if they give rise to physical damage. These are cases of a new form of actionable damage, that is, damage of a socially constructed kind.