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Public interest damages
Abstract
This paper argues that punitive, nominal, contemptuous, vindicatory, and disgorgement damages (commonly referred to as non-compensatory damages) can be collectively analysed as public interest damages because all these awards are justified by violations of public interests in addition to violations of the claimant's rights. To the extent they are awarded in the public interest, non-compensatory damages feature a distinctively public element in private law. In contrast to compensatory damages, public interest damages are justified by ‘non-correlative wrongdoing’, ie infringements of interests which are valuable to the community rather than to the claimant. This helps us to understand how public interest damages differ from traditional damages awards and why public interest damages should be treated as an exceptional remedy. In support of these claims, the paper offers an original analytic framework of reasons that justify damages awards.
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This is an important book which explores the classification of obligations. This is a very topical subject since the professions only started requiring Obligations in the compulsory core as recently as October 1995. It is fitting that it is examined here by contributors who are among the best-known writers in this field. The contributions include A New 'Seascape' for Obligations: Reclassification on the Basis of Measure of Damages by Jane Stapleton; Basic Obligations by James Penner; and an essay by Peter Birks himself entitled, Definition and Division: A Meditation on Institutes. These essays combine practical and academic perspectives which usefully highlight contemporary trends in the law of obligations. The book will be a valuable addition to the libraries of all teachers involved in this area of law.
When potential litigants first approach a lawyer they are generally interested in finding out one thing only: are they likely to be able to win damages or any other kind of remedy and what kind of quantum of damages are they likely to receive? It becomes the lawyer's main task to try to argue for a remedy and to persuade the court that the plaintiff has a good cause of action. Textbooks about contract and tort frequently treat damages and other remedies as an afterthought when in fact it is the issue of remedies which is a constant and ever present consideration for the plaintiff and his or her lawyer. This new book, containing contributions from many of the UK's leading specialists, brings to the fore a range of issues which are of topical interest to litigators and to teachers of law. In some instances the issues are currently the subject of reform proposals and these essays usefully highlight the principal issues facing the reformers and the objections which have been raised by those opposed to reform. In addition four of the essays tackle a strand of tort law which is of rapidly growing importance - the area of professional negligence. The contributors are among the best known writers in this field and their essays combine practical and academic perspectives which usefully highlight contemporary trends in professional negligence litigation. The first chapter in the book also offers a unique and controversial overview of tort law in the UK by Professor Patrick Atiyah who argues for a complete rethink of the system of personal injuries litigation in the UK, starting with its abolition and replacement by a vastly expanded system of private insurance.
Mistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where the claimants are the parents of the resulting, healthy, child. Drawing on the analogous tort of wrongful pregnancy, the paper provides a vindicatory account of the case of Rees v Darlington Memorial Hospital , and argues that Rees signposts the correct approach for tortious claims arising from mistakes in assisted human reproduction. It is argued that while the law should not compensate ‘loss’ flowing from the birth of a child, parents should be entitled to an award of damages to vindicate their right to reproductive autonomy. The paper explores vindication of the right to reproductive autonomy through the tort of negligence, but argues that vindication may be more effectively achieved through the creation of a separate tort which is actionable per se, strict liability, and expressly focused on vindication rather than compensation.
Cambridge Core - Law: General Interest - Principles of Tort Law - by Rachael Mulheron
There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing . A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.
Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”
Restitution for civil wrongs, also known as restitutionary damages, is a legal response through which the defendant’s wrongful gain is awarded to the claimant. James Edelman has recently advocated two different restitutionary responses for wrongs. One response, termed ‘restitutionary damages’, would aim to compel the wrongdoer to give back to the victim a wrongful gain, whereas the other response, ‘disgorgement damages’, would oblige the wrongdoer to give up a wrongful gain for the benefit of the claimant.
In the first case, the claimant would obtain what should have never left his assets. In the second case, the claimant would be the beneficiary of a judicial decision according to which a wrongful gain should not be kept by the wrongdoer. In this essay, I seek to demonstrate that this taxonomy cannot be accepted. I argue that Edelman’s ‘disgorgement damages’ are the only true example of restitution for wrongs, whereas his ’restitutionary damages’ are simply compensatory damages which are quantified in a particular fashion. Edelman’s ‘restitutionary damages’ might appear to deprive the defendant of his gain, and thus to achieve a restitutionary goal. Yet they nullify the victim’s loss and therefore have a compensatory nature. They are ‘pseudo-restitutionary damages’. In opposition to the dual theory, I submit a model of restitutionary damages based upon a single response which is coherent with the tenets of corrective justice. Given that it deals mainly with Edelman’s ‘restitutionary damages’, this article is not so much about restitution for wrongs but rather about compensation, which is what Edelman’s ‘restitutionary damages’ really concerns. The theory which I propose, based upon a single restitutionary response for wrongs, solves the taxonomic incoherence of Edelman’s dual theory. It also reflects the law as we find it, being supportable by reference to the available judicial authorities.
This book is about the law of remedies. It establishes the boundaries of this discrete area of law and provides a new classification of remedies. The book first examines the difficulties of the term 'remedy', and identifies the most robust notion of a remedy. Remedies are broadly approximated to court orders; more strictly, they are the rights arising from these orders. This enables a rigorous separation of remedies from substantive rights, that is, rights which exist before the making of a court order. The book then reviews established classifications of remedies, showing how they are seriously deficient and developing a new taxonomy based upon the relationship between substantive rights and remedies. This provides a much better understanding of that relationship, especially of the role of judicial discretion in the granting of remedies. The book then moves on to provide an overview of remedies in private law within the new analytical framework. It shows how each order that may be made by a court in a civil case gives effect to the substantive rights of the parties to the dispute. Particular primary and secondary (or remedial) rights, such as rights to damages, are carefully disentangled from the remedies which effectuate them, and the similarities and differences between various remedies are revealed. This book provides a new way to view remedies and substantive rights. It insists that the law of remedies must not reproduce parts of the law of substantive rights under a different name. For the first time, remedies are established as a stable and distinct area of law.
This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues
that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of
different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference
to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails
attesting to, affirming and reinforcing the importance of those interests that are the subject of the law’s protection and
their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies
across torts; the torts actionable per se are paradigm examples of torts that have vindication as their primary function.
The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages.
It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference
with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is ‘normative’ in nature,
are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical,
emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication
and non-compensatory damages, including the novel head of ‘vindicatory damages’.
This book develops the implications of that venerable Aristotelian notion of justice for understanding contemporary private law. Over the last decades corrective justice has become a central but controversial idea among legal scholars and theorists. This book presents corrective justice as the normative idea latent in the institutions and concepts of a fair and coherent regime of liability. It begins by setting out the conceptual components of corrective justice: the correlativity of the parties normative positions as the structuring idea of their relationship, and a robust notion of rights and their correlative duties (conceived in Kantian terms) as the content appropriate to legal relationships structured in that way. It then describes the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. The book integrates the concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Combining legal and philosophical analysis, it presents private law in non-instrumental terms, as a distinctive mode of moral discourse that focuses on the normativity intrinsic to the parties relationship.
This book offers a new approach to understanding private law. Rejecting the functionalism popular among legal scholars, the book advances the idea that private law is an autonomous and non-instrumental moral practice, with its own structure and rationality. The book draws on Aristotle's account of corrective justice and Kant's legal philosophy to set out a formalist approach to private law that repudiates the identification of law with politics or economics. It argues that private law is to be understood as a juridical enterprise in which coherent public reason elaborates the norms implicit in the parties' interaction. Private law embodies a special morality that links the doer and the sufferer of injury. The book elucidates the standpoint internal to this morality and traces the implications of the formalism he proposes for our ideas of the structure, coherence, and normative grounding of private law. It also shows how this formalism manifests itself in the leading doctrines of private law. Finally, the book describes the public but non-political role of the courts in articulating the special morality of private law. © E. Weinrib, 1995, revised edition with new preface first published 2012. All rights reserved.
This piece examines the meaning of vindication in private law and the relationship between this concept and the remedies which private law provides where rights are infringed. In contrast to some other approaches, it suggests that there is no single, institutional conception of what it means to vindicate rights in private law. Rather, it argues that the general conception of vindication is a mixed one - both in the sense that it overarches a number of more discrete and distinct ideas; and in the sense that these ideas are collectively founded on a plurality of private (individualist) and public (social) justifications. Many of the concepts of vindication which private law expresses are also to be found in public law, though the nature of the rights that public law vindicates is different. The discussion in this paper takes place in the shadow of the recent decision of the United Kingdom Supreme Court in Walumba Lumba v Secretary of State for Home Department [2011] UKSC 12, where several members of the Court canvassed the possibility of using damages awards purely for the purpose of 'marking' important rights. It concludes that although private law rightly vindicates rights in a number of important sense of the word, there is neither space nor need in the law for such a category of 'vindicatory' damages. It also raises doubts as to whether public expression and social norm-projection can legitimately be said to constitute purposes of private law.This piece was presented at the Obligations VI conference in London, Ontario, in July, 2012 and will appear in amended form in S. Pitel, J. Neyers and Erika Chamberlain, Tort Law: Challenging Orthodoxy (Hart, Oxford, 2013, Forthcoming).
In this paper, a draft contribution to a symposium on the work of John Goldberg and Ben Zipursky, I take Goldberg and Zipursky to task for failing to distinguish the law of torts adequately from some neighbouring areas of private law. I focus on their equivocation on the question of whether reparative (a.k.a. compensatory) damages have a special place in the law of torts. I suggest that this equivocation is bound up with Goldberg's and Zipursky's wish to maintain what I argue to be an artificial rivalry between their 'civil recourse' explanation of tort law and the 'corrective justice' explanations associated with Weinrib, Coleman, and others. I suggest that 'civil recourse' and 'corrective justice' each capture part of the truth about tort law. I end by addressing briefly some doubts about whether this is a truth worth capturing.
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them. A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine. Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.
A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of imposing a punishment upon a defendant who merits deterrence or retribution, they have a criminal aspect. Insofar as they pertain to the plaintiff's "right to be punitive," they have a civil aspect. Drawing upon the theory of civil recourse that the author has developed as a challenger to corrective justice theory, the article explains what a "right to be punitive" means. It then uses the recourse theory of punitive damages to support a rational reconstruction of the Supreme Court's constitutional jurisprudence of punitive damages. When a case can be understood as involving principally a plaintiff's right to be punitive, heightened constitutional scrutiny is not appropriate. However where, as in BMW v. Gore, the state is essentially imposing punishment, the excessiveness of a damages award is properly scrutinized under heightened constitutional standards.
Let me start the analysis by introducing two scenarios. In the first scenario, I have a beautiful villa. When I go on holiday, I leave the keys with my neighbour. But my neighbour is not very trustworthy. Soon after I leave, he organises parties for paying guests using my villa. After each party, he restores the villa to pristine condition and because he has his own supplies of water and electricity my utility bills are not increased by his use of my home. Upon my return, I find out about the parties but only because another neighbour tells me. In the second scenario, there is no villa, but I am still in a solid financial position. A friend of mine convinces me to invest in a company which produces a revolutionary microchip. He shows me publicity material relating to the company together with documents reporting its sound financial situation. All seem very convincing. I buy shares in the company, my friend acting as an intermediary in the transaction. Again, my friend is not trustworthy. He has not disclosed to me that he has a personal interest in the company and knows that it is close to bankruptcy. Following my investment, he manages to sell his own shares in the company for a good price. Yet, I realise in time that the company is in trouble and sell my shares at the same price which I paid for them.
Although damage is an essential component of negligence liability, important extensions of the categories of actionable damage occur with little or no analysis or even acknowledgment of the fact. In this article, consideration is given to a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition. The article is divided into three core sections, dealing with negligent imprisonment, wrongful conception and educational negligence. The principal conclusions are that redress for negligent imprisonment is best achieved through recognition of imprisonment as actionable damage in negligence; that an unwanted pregnancy is a form of personal injury, albeit an unusual one; that the conventional sum award in wrongful conception cases is best analysed as compensation for a diminution in the parents autonomy; and that while untreated learning disorders are now treated by the courts as a form of personal injury, in the absence of such a disorder educational under-development ought not to be recognised as actionable damage in its own right.
This article attempts to trace the history of the award of ‘vindicatory’ damages under Commonwealth Caribbean constitutions, to determine, first, why the courts were hesitant to grant damages for breach of constitutional rights; second, the circumstances and the principles that informed the decision of the courts to accept that an award of damages was an acceptable form of redress under Commonwealth Caribbean constitutions; third, the manner in which these principles have evolved over the past decades in Commonwealth Caribbean human rights jurisprudence; and fourth, examine the principles that underlie the award of the recently‐coined, ‘vindicatory damages’ for infringements of the Constitution.
In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between
the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving
it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective
justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective
justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to
explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that
‘corrective justice’ cannot be a complete answer to the question of what tort law is for.
In this article we examine the role which vindication plays in contract damages. Vindication describes the making good of
a right by the award of an adequate remedy. We argue that, while the primary purpose of compensation is to provide an indemnity
for loss, an award of compensatory damages will nevertheless generally vindicate the right to performance of the contract.
We go on to consider a distinct measure of damages, vindicatory damages. These, we argue, are neither compensatory nor restitutionary,
neither loss-based nor gain-based: they are a rights-based remedy. We then identify various situations in which the courts
may be seen to have awarded what are, in substance, vindicatory damages. We conclude by considering the benefits which may
follow from recognition of the availability of vindicatory damages as a contract remedy.
Book description: * Devises an entirely new theory which reconceives the law of torts
* Comparative analysis of primary materials from all the major common law legal systems
* It covers a central area of practice and study for all lawyers
The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This work seeks to show that this apparently simple proposition enables us to understand the law of torts as found in the common law.
Using primarily English materials, but drawing heavily upon the law of other common law jurisdictions, Stevens seeks to give an account of the law of torts which relies upon the core material familiar to most students and practitioners with a grasp of the law of torts. This material is drawn together in support of a single argument in a provocative and accessible style, and puts forward a new theoretical model for analysing the law of torts, providing an overarching framework for radically reconceiving the subject.
Tort and public law: overlapping categories?
- Nolan
Torts, rights and losses
- Stevens
Exemplary damages: a genuine concept?
- Janeček
False imprisonment and the fetch of hypothetical warrant
- Steel
Torts and other wrongs’ (2011) 39 Florida State University Law Review 43 at 56-58Google Scholar
- Gardner
EWHC 1482 (Ch) at [127] (referring to R (Lumba) v Secretary of State for the Home Department
- See Also Gulati V Mgn Ltd
Challenging the orthodoxy of crime's precedence over tort: suspending a tort claim where a crime may exist
- M Dyson