The Standardisation of Tort Damages
Abstract
This paper explores the nature, scope, rationale and merits of the standardisation of compensatory damages in tort law. A standardised award is understood to be one which gives the claimant not the value (subject to ordinary limiting principles) of their own loss, but rather that of the loss which an ordinary claimant placed in the same circumstances would have suffered. Such standardisation can be seen at work in respect of pecuniary and non-pecuniary, direct and consequential losses alike; it also concerns normative losses. Its two main spurs are either that the orthodox award would not give the “right” result—typically it would lead to a quantum regarded as too small—or that it runs into evidentiary difficulties which the award of a typical sum is meant to override. It is argued that, while epistemic standardisation (which is not standardisation in any strict sense of the term) might be acceptable, the avowed granting of something which does not aim to correspond to the claimant’s own loss should be resisted, and is in any event impossible because consequential losses can never be standardised.
About the presenter
Professor Eric Descheemaeker is Professor of Law at Melbourne Law School. He is a private lawyer whose main interests lie in the field of non-contractual obligations (tort and unjust enrichment). He was previously Reader in European Private Law at the University of Edinburgh in the United Kingdom and has been an honorary Visiting Research Fellow of the Institute of European and Comparative Law (University of Oxford), a Research Scholar at the Paul-André Crépeau Centre for Private and Comparative Law (McGill University) and a Honorary Research Associate in the Department of Private Law at the University of Cape Town.. Originally from France, he studied law at Paris-I Panthéon-Sorbonne University (bachelor’s and master’s degrees), the London School of Economics (LL.M.) and the University of Oxford (D.Phil.), where he was also a Fellow of St Catherine’s College for five years. His doctoral dissertation was published as The Division of Wrongs: A Historical Comparative Study (OUP 2009).Besides Anglo-Australian law, he is also interested in civilian legal history and mixed legal systems. He was a Distinguished Visiting Fellow at the TC Beirne School of Law, University of Queensland in the winter of 2015.
About Australian Centre for Private Law Events
The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:
Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.
Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.
Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.
The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.
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