The Taxonomy of Non-Pecuniary Losses in English Tort law. Comparative Remarks From The Perspective of French Law


This presentation covers the numerous areas of uncertainty and confusion due to a lack of systematic review and a disorderly expansion of numerous heads of non-pecuniary losses, focusing on English law, but also adopting a comparative perspective that employs French law as a ‘comparator’. Additionally, to achieve a clear picture of the current structure of the law it is fundamental to develop a secondary line of research focused on terminology. It would be impossible to analyse the coherency of current categories without some stability of what is meant by words such as wrong, loss, harm and damage in England, as well as dommage and préjudice in France. Critically, it is possible to see that on a daily basis the courts of these two jurisdictions award damages for pain and suffering, loss of reputation, etc. Yet, to make sense of these heads of losses at a taxonomic level, one must delve into the structure of tort law. In some cases, the system seems to operate in a two-tier (or bipolar) way, where the wrong and the concrete consequential losses that flow from it are conceptually separated. In other cases, it is possible to see the operation of a unipolar or normative model where the infringement of a protected interest is also the loss (although an ‘abstract’ one), which ultimately conflates wrong and loss. Frequently, these two models are used at the same time by the courts, thus creating potential overlaps between them. This piece will focus on the preliminary conclusions drawn from the research done into the three thematic areas of great importance for such endeavor, among other reasons due to the sheer volume of cases they represent, which are personal injury, the protection of privacy and defamation. The next academic year will be devoted to explore the issue of the functions of nonpecuniary losses, terminology, and the formulation of an alternative taxonomy.

Jun 6, 2019 12:00 PM
Ius Commune Masterclass, Katholieke Universiteit Leuven
Katholieke Universiteit Leuven, 3000
Arantxa Gutiérrez Raymondova
Arantxa Gutiérrez Raymondova
PhD in Law

I am a Postdoctoral Research Fellow at the University of Oxford. I am interested in comparative law, taxonomy, private law theory, taxonomy, and family law.