'I'm Not Half the Man I Used to Be': Exposure to Risk Without Bodily Harm in Anglo-American and Israeli Law

Abstract

This Article addresses the fundamental and age-old question of defining harm in tort law, among others following the case of the trapped Chilean miners. It challenges, in a comparative view, the common notion that no compensation will be awarded for blameworthy-tortious conduct that produces no actual loss or damages, because pure risks that have not yet materialized are not considered a harm.

Can damages be awarded by the risk creator to a plaintiff who was exposed to a medical risk or to radiation or toxins, and whose risk of becoming ill or suffering harm has thus been tortiously increased, even though he cannot demonstrate present bodily harm? Some view increased risk as an “incomplete” tort entitling victims to partial damages proportional to increased risk. Others view the exposure as a “complete” tort in itself. I examine each of these rationales against the overarching goals of tort law. Examination of these rationales will serve as a practical and theoretical basis for discussing the harder question; that is how to compensate healthy plaintiffs in cases of potential future harm, where the plaintiff is not the person he used to be following the exposure to the risk, but cannot point at a substantial bodily harm. I examine various categories of “healthy” plaintiffs in order to test the limits of these rationales. Through these categories, I address the key question whether compensation is merited and, if so, what its proper scope is.

I show a practical difference between the views of increased risk as an “incomplete” and a “complete” tort with respect to certain categories of plaintiffs. The discussion leads to a critique of Anglo-American and Israeli case law, which is not prepared to properly recognize the need for compensation in some of the categories.

Hence, this Article proposes for the first time a presentation based on the patterns of cases of different categories of healthy plaintiffs, examined against the two alternative theoretical rationales, and focusing on the need to compensate the healthy exposed people that are in a state of “latency” or incubation, whose lives have been changed in a bad sense as an outcome of a continuous risk. The Article offers various qualifications and parameters for the suggested acknowledgment of risk as harm.

Keywords: tort law, comparative law, increased risk, risk, goals of tort law, health law, environmental law