Conceptual and historical issues around the compensation of non-pecuniary losses in English and French law

Abstract

During the early and mid-twentieth century some well-known French scholars bitterly regretted the compensation of the allegedly novel dommage moral which was qualified as an americanisation of the human person, a form of commercialisation of pain, and a condemnable moral damage. In England, victims of train accidents that suffered from different sorts of trauma had their pain regarded as self-indulgent, frivolous and containing something intrinsically fraudulent. This paper shows how this debate about whether non-pecuniary losses can or cannot, and should or should not be compensated was not at all as new as many scholars assumed. This is so because traditional attempts to trace the emergence of the modern idea of compensation for non-pecuniary losses tend overrepresent the importance of specific scholars and schools of thought. Most arguments are based on two flawed premises. Firstly, the existence of a structural and conceptual uniformity in what we nowadays call non-pecuniary losses in French and English law. Secondly, the possibility of ascribing a common origin to non-pecuniary losses in English law and préjudice moral in French law. Here it is submitted that the diversity of heads of compensable non-pecuniary losses is the result of a convergent evolution where multiple origins can be identified. It has been suggested that it is possible to trace the origin of compensation of pain and suffering in English law to either sixteenth century Salamantine scholarship, or even as far back as the thirteenth century works of Duns Scotus. However, such characterisations are unlikely to account for the emergence of the whole array of heads of losses known in contemporary law. Rather, it will be shown that this is a story of progressive accumulation, convergence, and multiple shifts in the deeper functions assigned to the award of damages in different areas of the law, that cannot easily be reduced to a linear progression from a single source. The starting point that will allow us to arrive to such conclusion is that there is no single paradigmatic non-pecuniary loss, and as such, its historical development is not one of continuity.

Arantxa Gutiérrez Raymondova

Lecturer in Private law

I am a Lecturer in Private law at the University of Glasgow. I am interested in tort law, comparative law, contract law, and taxonomy.