1 While v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455, 492 (Lord Steyn).

2 Perrell v. Collins [1998] 2 Lloyd's Rep. 255, 261 (Hobhouse L.J.); contra Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1996] 1 A.C. 211, 235 (Lord Steyn).

3 Page v. Smith [1996] 1 A.C. 155, 187 (Lord Lloyd).

4 Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310.

5 As to the meaning of this, see Williams v. Natural Life Health Foods Ltd. [1998] 1 W.L.R. 829, 835-837 (Lord Steyn).

6 See esp. Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. [1964] A.C. 465; Henderson v. Merrell Syndicates Ltd. [1995] 2 A.C. 145, 178-181 (Lord Goff) (on “The governing principle”).

7 A similar point was made by J. Stapleton, “The Gist of Negligence” (1988) 104 L.Q.R. 213, 213. A valuable exception is C. Weston, “Suing in Tort for Loss of Computer Damage” [1999] C.L.J. 67.

8 Murphy v. Brentwood District Council [1991] 1 A.C. 398.

9 The orthodox understanding of damage in negligence, whether personal or property damage, is predicated upon the damage being deleterious in the sense that it is an “impairment”. Thus, “personal injury”, for the purposes of the Limitation Act 1980, “includes any disease and any impairment of a person's physical or mental condition”: s. 38(1). There is no such requirement in torts actionable per se. Thus, the performance of an operation without consent, although leading to an improvement in functioning, is an actionable battery. Similarly, a “dealing” with goods, although improving them in some way, is an actionable conversion.

10 [1932] A.C. 562.

11 There was also a much more speculative claim about nervous shock.

12 Hunter v. Canary Wharf Ltd. [1997] A.C. 655, 676 (Pill L.J.j. This point was not subject to the subsequent appeal to the House of Lords, reported at the same place.

13 See, e.g., Law Reform (Personal Injuries) Act 1948, s. 3; Limitation Act 1980, s. 38(1); Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758.

14 Hunter v. Canary Wharf Ltd. [1997] A.C. 655, 676 (Pill L.J.).

15 [1973] 1 Q.B. 27.

16 Pure omissions constitute a different category of case. See, e.g., Kent v. Griffiths [2001] Q.B. 36.

17 E.g., Holson v. East Berkshire A.H.A. [1987] 1 A.C. 750.

18 Contrast wrongful life claims, brought by children suffering congenital handicap or deformity. The Congenital Disabilities (Civil Liability) Act 1976, sub-s. l(2)(b) denies liability in such cases. The position is similar at common law. The Court of Appeal in McKay v. Essex A.H.A. [1982] Q.B. 1166 held that such claims do not divulge damage “in any accepted sense”: at p. 1189 (Ackner L.J.) (emphasis added). One cogent reason for this denial of damage is the impossibility of comparing non-existence with (impaired) existence and in valuing such claims: at pp. 1181-1182 (Stephenson L.J.), 1189 (Ackner L.J.) and 1192 (Griffiths L.J.). These actions are beyond the scope of this paper, as are the even more remote claims of wrongful birth brought by the parents of congenitally handicapped or disabled children. See, e.g., Parkinson v. St. James and Seacroft University Hospital N.H.S. Trust [2001] EWCACiv 530; [2001] 3 W.L.R. 376.

19 [2000] 2 A.C. 59.

20 This is well described in another context: Parkinson v. St. James and Seacroft University Hospital N.H.S. Trust [2001] EWCA Civ 530 at para. [67] (Hale L.J.); [2001] 3 W.L.R. 376.

21 Different considerations would apply, of course, where, due to the negligence of the doctor concerned, the claimant was to suffer some actual injury, such as a Caesarean scar: [2000] A.C. 59, 107 (Lord Millett). No argument is made here against the proposition that this is indeed physical injury. Arguments that equate unwanted pregnancy with injury simply because of its unwanted nature and because of the risks of something going wrong are fallacious. Negligence does not compensate for risks arising in the air. Damage, as has been stated, is required. Cf. H. Rogers, “Legal Implications of Ineffective Sterilization” (1985) 5 L.S. 296, 310; Grubb, A., “Failed Sterilisation: Limitation and Personal Injury” (1996) 4 Med. L. Rev. 94, 97. The focus of this article is upon how that damage is conceptualised.

22 Ordinarily, physical injury is a pre-requisite to a claim for damages, which may include (as a “head of damages”) pain and suffering: McGregor, H., McGregor on Damages (16th edn., London: Sweet & Maxwell, 1997), at p. 49, para. 82.

23 [2000] 2 A.C. 59, 74.

24 At p. 86.

25 At p. 87.

26 At p. 107 (emphasis added).

27 See note 21 above.

28 [2000] 2 A.C. 59, 86.

29 At p. 82.

30 At p. 84.

31 At p. 109.

32 See, esp., at pp. 76 (Lord Slynn), 82-84 (Lord Steyn), 91 (Lord Hope) and 100 (Lord Clyde).

33 [2001] EWCACiv 113; [2001] 1 W.L.R. 1279.

34 At para. [11],

35 At para. [13],

36 Ibid.

37 At para. [25],

38 At para. [43] (emphasis added). See, also, Hardman v. Amin [2000] Lloyd's Rep. Med. 498, 501 (Henriques J.).

39 [1990] 2 Q.B. 557.

40 At p. 570.

41 At pp. 572-573.

42 At p. 570.

43 [1999] Ch. 289.

44 According to the judge at first instance, “even before any remedial work, and applying pessimistic assumptions, they were well below levels which would have posed any risk to health”: at p. 299.

45 At p. 296.

46 At pp. 298-299.

47 At p. 300.

48 Ibid.

49 Stigma also arose from the possibility of further contamination in the future, but any loss in value arising from such fears was subject to a discount in the amount of damages to be awarded: at p. 310.

50 At p. 300.

51 [1995] 2 Lloyd's Rep. 395.

52 At p. 399.

53 Ibid.

54 (1976) 136 C.L.R. 529.

55 At pp. 597-598.

56 At p. 602.

57 [1973] 1 Q.B. 27.

58 (1999) 198 C.L.R. 180.

59 Plant Diseases Regulations 1989 (W.A.), Sch. 1, Pt. B, Item 14(1)(b)(ii) and (iii).

60 (1999) 198 C.L.R. 180, 192 (Gleeson C.J.), 197 (Gaudron J.), 240 (Gummow J.), 266 (Kirby J.), 299 and (Hayne J.). Cf. at p. 329 (Callinan J.).

61 At p. 240.

62 Gardner, J., “Obligations and Outcomes in the Law of Torts”, in Cane, P. and Gardner, J., Relating to Responsibility: Essays for Tony Honoré (Oxford: Hart Publishing, 2001), esp. at pp. 122125.

63 The other kind of “tail-order” obligation is that which arises under a strict liability tort, viz., not to cause damage. See ibid., at pp. 122-125.

64 At p. 124.

65 Ibid.

66 Gardner presents a further possibility, centred around “outcome responsibility” in the remainder of his article.

67 (1991) 93 Cr.App.R. 25.

68 At p. 27.

69 At p. 28.

70 The evidence was, however, that the computers containing the disks were indeed rendered temporarily inoperable.

71 Lord Lane C.J. rejected a suggestion that the interpretation of the phrase “physical damage” adopted by the court below was incorrect on the basis that the legislature had, by the time that R. v. Whiteley was taken on appeal, stepped in to clarify the meaning of the phrase. The Computer Misuse Act 1990, s. 3(6) defines “damage”, for the purposes of the Criminal Damage Act 1971, as subsisting in some impairment to a computer's or to a computer storage medium's “physical condition”. His Lordship's view was that the subsequent amendment could not affect the original meaning of the words: (1991) 93 Cr.App.R. 25, 31.

72 See also Seaboard Life Insurance Co. v. Babich [1995] W.W.R. 756; Rockport Pharmacy Inc. v. Digital Simplistics, Inc. 53 F. 3d 195 (1995). In both of these cases, North American courts refused to accept that the loss of computer data could amount to physical damage.

73 The close relationship between these causes of action has often been noticed. See, e.g., Trindade, F. and Cane, P., The Law of Torts in Australia (3rd edn., Melbourne: Oxford University Press, 1999), at pp. 650654.

74 Cf. M. Lee, “Civil Liability for Contamination: Blue Circle Industries Pic v. Ministry of Defence” (1999) 50 N.I.L.Q. 403, 409-410.

75 (1999) 198 C.L.R. 180.

76 At p. 329.

77 C. Witting, “Negligent Inspectors and Flying Machines” [2000] C.L.J. 544.