Protecting Negligence Claimants’ Decisions: An Argument of Doctrinal Coherence in Non-pecuniary Loss

Various heads of non-pecuniary loss recovery in negligence cast doubt on the explanatory capacity of the traditional twin categories of pain and suffering and loss of amenity. This includes, in particular, loss of congenial employment and loss of reproductive autonomy. The central arguments of this piece are that we can construct from these, based on the existing law, a third category of non-pecuniary loss for personal injury; and that recognising this allows us to rationalise, expand and develop the claims more coherently, rather than castigating them as exceptional extras. The article demonstrates that, alongside pain and suffering and losses of amenity, the courts have already accepted 'loss of a protected decision' in these contexts. From that base, the argument considers with more conceptual coherence whether further instances of this category can be accepted in the healthcare and other contexts.