Compensating injury to autonomy: A conceptual and normative analysis

Abstract

In this chapter, I evaluate an increasing tendency of courts across different jurisdictions to remedy (albeit inconsistently) injury to autonomy (‘ITA’) mainly in the tort of negligence, but also through consumer protection and contract law, thus recognising a protected interest in autonomy as a new type of substantive private interest. I will focus on scenarios similar to Bhamra v Dubb, in which the consumer, contrary to reasonable expectation consumes food which they prefer to avoid due to ethical or religious preferences. By this, the chapter aims to contribute both to the general question whether ITA should be compensated in different contexts (medical, consumer, personal status and so on) and in the more specific context of ‘avoided’ food.

My goals are both conceptual and normative. Part II distinguishes between three types of ITA. This distinction often eludes courts with the result of much confusion and inconsistency. I will focus mainly on type 2: cases in which the claimant is brought to an inferior state of affairs without his consent and where the ITA is not consequent on violation of an already protected interest. Part III explores three constitutive elements of ITA – meaningful choice; reliance (as opposed to expectation) interest; and irreversibility. Part IV provides a normative defence to providing a remedy for type 2 ITA (which is at the heart of this chapter) in appropriate circumstances.

The standard liberal account of autonomy, at least as applied to tort law, focuses on the ability to make choices simpliciter. The focus of this chapter is on a thicker notion of autonomy – protecting choices that are informed by one’s personal beliefs, ethics, values, attitudes and world view, or have a significant bearing on the way the claimant leads their life. According to such a view, not all acts that affect choice are equal – choices closely connected with the attempt to live by one’s values are more fundamental than those that are not, and as such deserve protection. Accordingly, interactions bringing the claimant to an inferior state of affairs since they undermine the claimant’s worldview or have a significant bearing on the way they lead their life deserve compensation in either negligence or contract, even if the harm is entirely non-pecuniary and non-corporeal.