Comparing apples and oranges - Normative losses and consequential losses in the context of compensation of non-pecuniary losses in English tort law

Abstract

The distinction between pecuniary and non-pecuniary losses is one that cuts across the whole legal system. In different areas references are made to distress, a loss of privacy in itself, an injury to reputation, or the loss of the amenities of life, just to name a few. However, a central yet underdeveloped area of tort law concerns the systematisation of such non-pecuniary losses. It is noteworthy that considering their importance in everyday litigation, mapping the heads of non-pecuniary losses in English law is a task of considerable difficulty. To some extent, this can be explained because the inquiry has to review each particular tort and thematic areas, with most of the efforts to distinguish different heads of non-pecuniary losses being immediately redirected to cases of personal injury. Additionally, aggravated damages have to be considered to account for all scenarios of compensation of injury to feelings, but more importantly, a clear identification of such heads of losses is obscured by the different logics subjacent to each of them. In that sense, there are normative (or abstract) losses which respond to a unipolar model, where the infringement of a protected interest will be enough to trigger liability, conflating wrong and loss. Alternatively, other heads of losses show a bipolar structure, where concrete pecuniary and non-pecuniary losses flow as a consequence of the wrong, being conceptually different from it. In this presentation it is argued that in areas such as the protection of privacy and personal injury these two levels of abstraction are often used simultaneously, producing an overlap. The effects of their compatibility (or incompatibility) relate directly to the coherence of tort law as a system, but also have implications regarding the compensation of non-pecuniary losses by legal persons, by definition unable to experience concrete non-pecuniary losses such as pain and suffering.

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.