Candidate Number: BTRQ6
Critically discuss whether exposing others to risk is itself a form of harm
Introduction
This paper seeks to undertake a critical evaluation of Finkelstein’s thesis that a risk of
harm per se is sufficient to constitute harm within the law. The place of risk in the law
has been the subject of much debate. Indeed, one scholar has noted that: “[w]hat makes
careless conduct careless is easily one of the deepest and most contested questions
in negligence law, tort theory, and moral theory”.
In order undertake my evaluation, I will analyse and evaluate Finkelstein’s thesis, which
she terms the “Risk Harm Thesis”, and her claim that the courts have shown a willingness
to recognise a risk of harm as a risk in itself. Ultimately, I seek to argue that, although
persuasive, her contention is flawed: the evidence provided in support of her argument in
the form of court judgments purporting to recognise her thesis can readily be explained
on another basis, namely the defendant’s conduct as opposed to the harm suffered by the
claimant. This is much more in line with the policy objectives of the law. Indeed, as
Goldberg and Zipursky argue, “most tort scholars have adopted the view that the main
point of tort law is to provide legal incentives that will steer actors away from
unjustifiably risky or socially harmful conduct by penalizing them if they engage in such
conduct”.
, Candidate Number: BTRQ6
The Thesis Outlined
According to Finkelstein’s Risk Harm Thesis, a risk of harm is in itself a risk because
“exposure to risk entails a reduction of an agent’s welfare, regardless of whether the risk
eventuates in outcome harm”. While she accepts that there is a relationship between the
risk of harm and whether or not that risk materializes – which she terms “outcome harm”
- Finkelstein asserts that the two concepts are not interdependent and that “the harm a
person suffers by being exposed to risk does not evaporate the moment it is clear no
outcome harm will result”.
From the outset, I submit that this appears to be a contradiction in terms, for how can a
risk of harm continue once it is clear that the possibility of the risk materializing has
passed? Surely the risk of harm is only effective while there remains a possibility of the
risk eventuating. Indeed, Finkelstein acknowledges this objection and sets out to defend
her thesis, explaining its operation by analogy with what she terms the “Chance Benefit
Thesis”. This holds that a chance of gaining a benefit is such as to constitute a benefit
itself. Underlying the thesis is the idea that the agent is somewhat better off by virtue of
the chance, i.e. he is in a better position than he would have been had he not received the
chance, regardless of whether the benefit ultimately materializes. Finkelstein
demonstrates how this is so using an example of the person who receives an opera ticket:
the ticket is valuable at the time it is received, and this benefit persists even once the
benefit conferred by the ticket – the opera – has passed. She points out that the fact that
the value of the actual ticket is lost following the opera does not lead to the necessary
, Candidate Number: BTRQ6
conclusion that it holds no benefit after the event: the recipient of the ticket, having been
to the opera, is still better off for having received the ticket than if he had not. Finkelstein
strengthens her argument in respect of the chance benefit thesis by pointing out that the
fact we feel “gratitude” as opposed to “indifference” upon learning of the chance of a
benefit. Indeed, such gratitude persists independently of whether the benefit ultimately
materializes.
Finkelstein points out that this concept is more readily accepted than risk harm, and I
submit that there is good reason for this. Although the chance of gaining a benefit and the
risk of being harmed may seem prima facie similar, they are actually wildly different in
terms of the type and endurance of emotion experienced by an agent who receives the
chance of a benefit or is exposed to a risk of harm. Whilst I agree with Finkelstein’s
submission that the chance of receiving a benefit is such as to constitute a benefit itself
because the individual is likely to experience similar feelings, although to a differing
extent, in both cases, I do not see how this can be translated into the notion that a risk of
harm constitutes a risk itself. In the latter case, the feelings that an individual might
experience upon learning that they are being or have been exposed to a risk are likely to
evaporate fairly quickly after it is clear that they are no longer at risk. Nevertheless, in
order to determine whether this objection can be overcome, we will examine on what
basis Finkelstein contends that the two concepts are linked.
Finkelstein purports to link the two concepts as follows. Applying the concept of chance
benefit in the context of harm, “a person who has been exposed to a risk has been made
Critically discuss whether exposing others to risk is itself a form of harm
Introduction
This paper seeks to undertake a critical evaluation of Finkelstein’s thesis that a risk of
harm per se is sufficient to constitute harm within the law. The place of risk in the law
has been the subject of much debate. Indeed, one scholar has noted that: “[w]hat makes
careless conduct careless is easily one of the deepest and most contested questions
in negligence law, tort theory, and moral theory”.
In order undertake my evaluation, I will analyse and evaluate Finkelstein’s thesis, which
she terms the “Risk Harm Thesis”, and her claim that the courts have shown a willingness
to recognise a risk of harm as a risk in itself. Ultimately, I seek to argue that, although
persuasive, her contention is flawed: the evidence provided in support of her argument in
the form of court judgments purporting to recognise her thesis can readily be explained
on another basis, namely the defendant’s conduct as opposed to the harm suffered by the
claimant. This is much more in line with the policy objectives of the law. Indeed, as
Goldberg and Zipursky argue, “most tort scholars have adopted the view that the main
point of tort law is to provide legal incentives that will steer actors away from
unjustifiably risky or socially harmful conduct by penalizing them if they engage in such
conduct”.
, Candidate Number: BTRQ6
The Thesis Outlined
According to Finkelstein’s Risk Harm Thesis, a risk of harm is in itself a risk because
“exposure to risk entails a reduction of an agent’s welfare, regardless of whether the risk
eventuates in outcome harm”. While she accepts that there is a relationship between the
risk of harm and whether or not that risk materializes – which she terms “outcome harm”
- Finkelstein asserts that the two concepts are not interdependent and that “the harm a
person suffers by being exposed to risk does not evaporate the moment it is clear no
outcome harm will result”.
From the outset, I submit that this appears to be a contradiction in terms, for how can a
risk of harm continue once it is clear that the possibility of the risk materializing has
passed? Surely the risk of harm is only effective while there remains a possibility of the
risk eventuating. Indeed, Finkelstein acknowledges this objection and sets out to defend
her thesis, explaining its operation by analogy with what she terms the “Chance Benefit
Thesis”. This holds that a chance of gaining a benefit is such as to constitute a benefit
itself. Underlying the thesis is the idea that the agent is somewhat better off by virtue of
the chance, i.e. he is in a better position than he would have been had he not received the
chance, regardless of whether the benefit ultimately materializes. Finkelstein
demonstrates how this is so using an example of the person who receives an opera ticket:
the ticket is valuable at the time it is received, and this benefit persists even once the
benefit conferred by the ticket – the opera – has passed. She points out that the fact that
the value of the actual ticket is lost following the opera does not lead to the necessary
, Candidate Number: BTRQ6
conclusion that it holds no benefit after the event: the recipient of the ticket, having been
to the opera, is still better off for having received the ticket than if he had not. Finkelstein
strengthens her argument in respect of the chance benefit thesis by pointing out that the
fact we feel “gratitude” as opposed to “indifference” upon learning of the chance of a
benefit. Indeed, such gratitude persists independently of whether the benefit ultimately
materializes.
Finkelstein points out that this concept is more readily accepted than risk harm, and I
submit that there is good reason for this. Although the chance of gaining a benefit and the
risk of being harmed may seem prima facie similar, they are actually wildly different in
terms of the type and endurance of emotion experienced by an agent who receives the
chance of a benefit or is exposed to a risk of harm. Whilst I agree with Finkelstein’s
submission that the chance of receiving a benefit is such as to constitute a benefit itself
because the individual is likely to experience similar feelings, although to a differing
extent, in both cases, I do not see how this can be translated into the notion that a risk of
harm constitutes a risk itself. In the latter case, the feelings that an individual might
experience upon learning that they are being or have been exposed to a risk are likely to
evaporate fairly quickly after it is clear that they are no longer at risk. Nevertheless, in
order to determine whether this objection can be overcome, we will examine on what
basis Finkelstein contends that the two concepts are linked.
Finkelstein purports to link the two concepts as follows. Applying the concept of chance
benefit in the context of harm, “a person who has been exposed to a risk has been made
