European Review of Private Law

Volume 19 (2011)

Volume 19 (2011) / Issue 2

Philip Mielnicki, 'Challenging the Concepts of Damage in Tort Law with Shock Injury' (2011) 19 European Review of Private Law, Issue 2, pp. 291–307

Abstract

Abstract: The case of Yearworth decided by the Court of Appeals of England and Wales (2009) put the application of tort law and contract law to the test in several respects. A claim was brought by a number of men who had undergone treatment for cancer and therefore stored their sperm, which was negligently destroyed by the hospital, causing the men a psychiatric injury. It is thus a case of shock injury suffered consequential to an initial harm. However, what has been destroyed: a body part that constitutes a personal injury or damage to property? In addition, how is liability for a shock injury in such a case or other cases delimited? I argue that the assessment cannot be driven by an introspective definition of the concepts of harm. Instead, it is necessary to grasp the nature of the initial harm caused by the tortfeasor - including the rights (or protected interests) and duties related to that initial harm - and the normative correlation to the final personal injury (shock injury) suffered by the injured person. A model for making that assessment is presented here from a Swedish tort law perspective on shock injuries consequential to the destruction of biological material and property in general.

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ISSN: 0928-9801
ID: ERPL2011018