whether certain harms should be cognizable, something beyond the scope of her theory. As such, it is reasonable for Finkelstein’s theory to involve a different conception of harm. Another objection to the definition of harms as a setback to a legitimate interest has been raised by Oberdiek,7 who argues that interests are mere preferences, and cannot be the basis of determining harm. In the example of a house filled with explosives, he notes that while having to live in it would be a setback to an interest and, irrational, given one’s stated preference, being forced to act in an irrational way may not necessarily be harmful. However, Finkelstein views the concept of legitimacy as one that is a “contested concept around the edges” and that this does not impede a discussion of the core legitimate interests. It is certainly arguable that not all preferences are legitimate interests. A preference for eating only foods coloured red, for example, is unlikely to be legitimate. Furthermore while there may be disagreement as to the legitimacy of whether certain interests within the penumbra, interests of a bodily, emotional, and economic nature are common to all and should sit squarely within the intersection of a Venn diagram mapping out legitimacy and interests. It is, however, conceded that as legitimacy is a substantial aspect of her theory’s chosen definition of harm, it is more difficult to execute a rigorous analysis of her theory given that the definition of legitimacy has been outsourced to a separate, and as yet undefined, moral theory. Thomson8 makes a related argument by noting that while a person would prefer to be in a situation where harm is less likely, placing such a person in a situation where harm is more likely to occur would be against their preferences, but does not necessarily equate to harm. In short, her response to Finkelstein’s example of a choice between a higher or lower chance of cancer would be that the fact that everyone would could the lower chance only proves that people prefer a less risky life, and not that the higher chance of cancer would be harmful per se. On the other hand, to Lord Nichols, in his dissent in Gregg v Scott, a case concerning the misdiagnosis of a cancerous tumour, argues 7 8
Oberdiek, 2012. Thomson, 1990.
that “the loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of at 55% prospect of recovery”.9 As such, Thomson’s position that the only valid harms are outcome harms would imply that in cases where causation is uncertain, it is only the operation of the balance of probabilities test that allows recovery in loss of a chance cases such as Gregg and Scott. Such a restriction may be reasonable when the court is determining whether certain types of harm should attract liability, but seems unduly harsh when the issue at hand is determining whether risk is harm. DO RISK HARMS EXIST? It has been argued by Perry that risk is a method of bridging the information gap when we lack the knowledge to determine which outcome will unfold.10 However, assuming full information in a deterministic universe, it will be possible to determine from the onset whether the harm will or will not occur. As such, it is not possible for risk harm to exist. In the terminology of setbacks to interests, Perry’s argument is that the concept of risk of bodily harm as a setback to the legitimate interest of “physical health and vigor” cannot be sustained in a deterministic universe, as, with full information, there will be no question as to whether exposure to the risk will be a setback to an interest, as cases of exposure can be distinguished from the onset between cases where a setback is present, and cases where a setback is absent. One response is to argue, as Finkelstein does, that the scenario described by Perry is only relevant if outcome harms are the only compensable forms of harm and does not provide reasons against compensating for risk harm. It is true that victims may prefer the certainty of compensation for risk harm as opposed to the possibility of claiming compensation when the risk harm resolves into outcome harm and that it may be preferable to have a system by which claims are not resolved on an all or nothing basis. However, her argument is undermined by the fact the mere preference that victims may prefer to recover for risk harm fails 9 While he would only allow such claims in the context of scientific uncertainty and medical negligence, this qualification arguably goes towards the separate issue of whether risk harm should attract liability. 10 Perry, 1997.