5. Damage
Not every kind of damage suffered is recoverable in negligence claims. Negligence is not actionable without damage that is recognised by the court as “actionable”. Damage means the actual harm or loss suffered by the plaintiff, such as physical injury, property damage, recognised psychiatric illness, or recoverable financial loss. It is an essential element of the cause of action.
Damage recognised by the law in negligence includes:
(i) Physical injury
This includes bodily injury, illness, worsening of an existing condition and death. An example is that a driver negligently runs a red light and breaks the plaintiff’s leg in a collision. A significant expansion of this category includes sensitisation to a substance (such as platinum salts). Even if the condition is currently symptomless, it constitutes actionable injury if it requires the plaintiff to change his life to avoid future exposure, thereby impairing his bodily capacity for work.
(ii) Property damage
This covers physical damage to the plaintiff’s property. An example is that a negligent driver crashes into and damages the plaintiff’s car.
(iii) Recognised psychiatric illness
The law allows recovery for medically recognised psychiatric conditions, but not for mere grief, upset, or distress unless it is associated with the physical injury. For more information, please refer to “Psychiatric injury”.
(iv) Economic loss consequent upon physical injury or property damage
Financial loss is recoverable where it flows from personal injury or property damage. For example, a taxi driver’s car is damaged in a collision, causing repair costs and loss of earnings while the vehicle is unusable.
(v) Economic loss consequential on negligent misstatement/services
Pure economic loss may be recoverable where the defendant assumes responsibility, such as in giving professional advice or providing services. For more information, please refer to “Pure economic loss”.
(vi) Loss of autonomy
In cases of "wrongful birth" resulting from medical negligence, a conventional award may be made for the infringement of the parent’s right to limit the size of their family, regardless of whether the child is healthy or disabled.
Present damage vs. exposure to risk
The law usually requires actual present damage, not simply exposure to risk. Anxiety about future disease, without recognised psychiatric illness, is insufficient for compensation. For example, a worker is exposed to asbestos but has no present illness. Mere fear of developing disease later is not usually enough. However, if a recognised psychiatric illness develops because of that anxiety, it may be recoverable only if such an outcome was specifically foreseeable to a person of “ordinary fortitude”.
Defective property
If a defective product or building causes personal injury, or damage to other property, that resulting damage is recognised and recoverable in negligence. For example, faulty wiring in a building causes a fire that destroys furniture and other belongings.
However, the law generally does not treat the mere existence of a defect as actionable damage in negligence. If a building is badly constructed but has not yet caused injury or damaged other property, the cost of repairing the defect is usually treated as pure economic loss, not recoverable in negligence. For example, a house is built with defective foundations, reducing its value, but causing no physical injury or damage to other property.
Distinguishing “damage” from “damages”
It is important to distinguish between damage and damages. Damage refers to the legally recognised harm or loss suffered by the plaintiff, and it is a necessary element of the tort of negligence. Damages, by contrast, refers to the monetary compensation awarded by the court for that harm or loss once liability has been established. Thus, proof of damage is required before the plaintiff can recover damages.
