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Title: Risk and the damage requirement in negligence liability
Authors: Turton, Gemma
First Published: 19-Feb-2014
Publisher: Wiley
Citation: Legal Studies, 2014, doi: 10.1111/lest.12043
Abstract: 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.
DOI Link: 10.1111/lest.12043
ISSN: 0261-3875
eISSN: 1748-121X
Version: Post-print
Status: Peer-reviewed
Type: Journal Article
Rights: Copyright © 2014 The Society of Legal Scholars.
Description: 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.
Appears in Collections:Published Articles, School of Law

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