Donal Nolan Lectures on Damage
On November 13th, Donal Nolan, delivered the first Tort Law Research Group Public Lecture of the 2017-18 academic year to an audience of law students, faculty, and guests as part of Western’s International Week. Professor Nolan is a Professor of Private Law at the University of Oxford and the Francis Reynolds and Clarendon Fellow and Tutor in Law at Worcester College, Oxford. He is an expert in both the law of torts and the law of contract. He is a co-author of Lunney, Nolan, and Oliphant, Tort Law: Text and Materials (OUP, 6th edn, 2017), a co-editor of Rights and Private Law (Hart Publishing, 2012), and a contributor for numerous others. He also publishes prolifically in leading journals, such as the Law Quarterly Review, the Oxford Journal of Legal Studies, the Cambridge Law Journal, the Modern Law Review, and Legal Studies.
In his talk, entitled “Damage in the Law of Negligence,” Professor Nolan challenged two widely-held beliefs about negligence’s damage requirement: first, that it is the least important element of the tort; and, second, that it is largely synonymous with the concept of factual loss. Instead, he argued that the concept of damage is key to a holistic understanding of the tort of negligence, and that a clear distinction must be drawn between loss and damage since there can be situations of damage without loss and, also, loss without damage. In Professor Nolan’s view, loss is the abstract concept of being worse off, physically or economically. What counts as damage, however, is not as easy to define as loss and will depend upon the type of right or interest that is interfered with. For example, in personal injury cases damage is often defined as any disease or any impairment of a person’s physical or mental condition, whereas in situations of property interference, damage is often defined as a physical change which renders the article less useful or less valuable. In the end, Professor Nolan posited that damage is ultimately a normative concept as opposed to merely a factual state of being since the exact same physical condition, such as a pregnancy, might count as damage in one set of circumstances (e.g., if it came about after a procedure designed to prevent it), but not in another (e.g., if it arose after a procedure designed to bring it about).
A recording of Professor Nolan’s lecture can be found at https://youtu.be/ClYn0RPzAGY