Title: The Compensatory Principle: Restitutio in Integrum or Restitutio Rationalis?

Speakers: Dr Andrew Fell and Dr Iain Field

Time and date: 1-2pm, Tues 6 April 2021

Where: Law School Board Room (W353), Level 3, Forgan Smith Building, The University of Queensland, St Lucia

Abstract

On the orthodox understanding of private law compensation, the defendant is required to compensate the claimant for their actual loss; they are entitled to be put, as far as money can, in the position that they would actually have been in if the wrong had not occurred. This is often referred to as ‘the compensatory principle’. Although a number of rules can reduce the claimant’s compensation below their actual loss – such as remoteness, intervening causes and mitigation – these are viewed as isolated, policy-based exceptions; compensating the claimant for their actual loss is still the primary object of compensation.

Our claim is that this orthodox understanding does not accurately represent the existing law. On the true principle, the claimant is entitled to compensation for losses that it is reasonable to hold the defendant responsible for, having regard to the claimant’s own conduct and the proper limits of the defendant’s liability. The claimant is not necessarily compensated for all of their actual loss, and can sometimes even be compensated for losses that they do not actually suffer. As well as the well-recognised exceptions to the actual loss account, the principle is also reflected in the many value judgements that the law makes even in identifying the claimant’s supposed ‘actual loss’, which are simply not designed to give claimants their actual loss.

Although logically the law can often be explained in terms of the ‘actual loss with exceptions’ account, our account is preferable for several reasons. First, if the law’s true principle is to compensate claimants for their reasonable losses, this should be frankly acknowledged, not hidden behind an illusory object (ascertaining actual losses). Secondly, accepting the actual loss account has the potential to distort the law, and already has done in some cases. Finally, contrary to popular belief, the actual loss account sits uncomfortably with leading theories of private law, in particular corrective justice theory.

About the speakers

Dr Andrew Fell's research evaluated the High Court's reliance on the principle of 'coherence' in private law adjudication. Parts of this research have been published in leading journals, such as the Melbourne University Law Review and the University of Toronto Law Journal.

Dr Iain Field joined UQ Law School in 2019. His primary research and teaching interests lie in the area of tort law, with an emphasis on defences and damages. Iain's most recent work focusses on claimant accountability in tort law, the relationship between remedial rules and rules of liability, and the intersection of public and private law. Specific issues addressed include whether provocation ought to afford a basis for the reduction of compensatory damages in trespass (Modern Law Review), the nature and function of contributory negligence and its relationship with the rules of mitigation (Oxford Journal of Legal Studies), and whether the standard of the reasonable person ought to be applied 'equivalently' to claimants (for the purposes of establishing contributory negligence) and defendants (for the purposes of establishing negligence) (Melbourne University Law Review). 

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.

Venue

Level 3, Forgan Smith Building, The University of Queensland, St Lucia
Room: 
Law School Board Room (W353)