INTRODUCTION While harm is a necessary condition for tort liability, “the world is full of harm for which the law furnishes no remedy”,1 and there is therefore a distinction between recognised harms attracting liability in law, and unrecognised harms, which have no legal weight. Nevertheless, Clare Finkelstein puts forward the argument that exposure to risk should be a form of harm equivalent to the traditional outcome harms such as physical injury. THESIS This essay aims to show that Finkelstein’s theory of risk as harm can be used to support the position that exposing others to risk is a form of harm via the consideration of the key concerns facing the theory: whether harm should be defined in terms of objective setback to legitimate interests, whether risk harms exist, and whether the fact that the continued existence of risk harms when the risk eventuates leads to overcompensation; via the consideration of support from authorities that can be drawn from the case law of the United States and the United Kingdom; and by consideration of the implications of adopting a definition of harm that includes risk. RISK AS HARM Finkelstein adopts Joel Feinberg’s definition of harm as a setback to a legitimate interest in advancing her claim that exposure to risk (“risk harm”) is a form of harm. Feinberg identifies four senses in which the term harm is used: in a derivative sense,2 in a non-derivative sense,3 as a normative sense of a wrong,4 and as a setback to 1 Lord Steyn in JD v East Berkshire Community Health NHS Trust and ors [2005] UKHL 23. 2 Refers to the situation where there someone else’s interests have been harmed by proxy. Feinberg gives the example of a homeowner being harmed by vandals smashing his windows; the harm to the windows is derived from the setback to the owner’s interest in his property remaining whole. 3 This sense of harm can also be described as an increase in entropy of an object, such that the object is damaged, a physical process that can occur even without an owner with an interest in the object. 4 Refers to situations where one’s “indefensible conduct violates the other’s right”.
an interest. His conception of harm as a setback to an interest relies on the assumption that people will have a variety of personal interests, such as “physical health and vigor”, “emotional stability” and “income and financial security”, corresponding to the bodily, emotional and economic outcome harms recognized in tort.5 Having adopted the conception of harm as a setback to a legitimate interest, Finkelstein argues that risk harm constitutes an objective setback to a person’s legitimate interests regardless of whether the risk eventuates. By corollary, exposure to beneficial risks (“chance benefit”) regardless of outcome advances a person’s legitimate interests. By this definition, exposure to the risk of physical injury would be as much of an objective setback to the legitimate interest of physical health as the ordinary and tangible “outcome harm” of physical injury. SHOULD HARM BE DEFINED IN TERMS OF OBJECTIVE SETBACK TO LEGITIMATE INTERESTS? While Finkelstein uses Feinberg’s conception of harm as a setback to a legitimate interest as the basis of her theory, Feinberg, in his discussion of the moral limits of the criminal law, settled on a normative definition of harm as wrong, or “indefensible conduct [that] violates the other’s right”. This would seem to raise a prima facie question of whether Finkelstein’s choice of definition was correct. It should however, be noted that while Feinberg is discussing the moral aspects of the criminal law, Finkelstein is constructing a morally-neutral framework for defining risk as harm.6 Given that moral issues are beyond the scope of her theory, the avoidance of normative definitions, in favour of a definition allows a discussion of harm that would otherwise not be possible. Furthermore, Finkelstein is only attempting to establish that risk harms can be harm, not that risk harm should attract liability. To evaluate harms as wrongs would be involve journeying into the areas of tort law dealing with 5 Zipurksy & Goldberg, 2002 6 “…no account of legitimacy will be required for our purposes, since it will suffice to notice that it is possible to give that notion moral content, and recognize that the precise contours of the notion of harm will depend on that content.” (Finkelstein, 2002).