Andrew Bell of the Institute for European Tort Law presents his paper on 'Recoverability for Claimant Choice: New Losses in English Personal Injury?' in a Juristenrunde on 9 August 2018.
The paper seeks to outline an approach to recovery for autonomy-type detriments in personal injury cases from the perspective of recoverable loss, focused on the English tort of negligence. It argues that, well beyond patient consent and medical negligence cases, choice is a pressing issue in defining and recognising recoverable heads of loss. Recently there have been multiple efforts in practice to argue for recognition of forms of ‘autonomy’ interference in the healthcare sector as recoverable losses. These attempts build awkwardly on arguments made as to ‘patient autonomy’ in respect of various aspects of the liability analysis in the tort of negligence and have thus far failed to make the case successfully for any specific and independent, autonomy-related recovery in failure-to-inform medical negligence cases. Andrew Bell proceeds differently. Rather than begin broadly with a more or less nebulous idea of ‘autonomy’ and the use of autonomy arguments within negligence liability generally, his paper focuses on a more limited question as to remedy: how is non-pecuniary loss understood and defined in situations where a claimant’s choice is central to an understanding that she has suffered harm. The paper moves from this starting point to piece together existing recoveries to offer a generalised concept for choice-based non-pecuniary losses. This concept stretches beyond medical negligence cases and shows that new recoveries are ripe for discussion on a broader basis than presently thought.