Non-Pecuniary Loss as Loss of Wellbeing

Speaker: Dr Andrew Fell, University of Queensland

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This paper considers the implications of theories of wellbeing for the law’s conception of non-pecuniary loss. The concept of wellbeing maps almost perfectly onto the concept of loss — both are about what things or events are good or bad for people. To this extent, any theory of loss is or assumes a theory of wellbeing; indeed, some judges have explicitly appealed to theories of wellbeing to justify their approach to the identification and assessment of non-pecuniary loss. An assumption in much case law and literature is that whether a person suffers non-pecuniary loss is solely (or at least primarily) determined by their emotional state. I argue that this assumption is inconsistent with several plausible theories of wellbeing, focusing on a particular case study — namely, the assessment of loss of amenity for claimants rendered unconscious by a defendant’s wrong.

About the speaker

Andrew Fell is a lecturer at the TC Beirne School of Law at the University of Queensland, where he currently teaches courses on Trusts and Equity. His interests are in private law and private law theory generally. His PhD and subsequent publications have examined the meaning and jurisprudential logic of the principle of ‘coherence’ in the High Court of Australia’s jurisprudence, the meaning of loss in the proving and quantifying damages awards and the relationship between loss and being. He is a co-editor of and contributor to Life and Death in Private Law (Hart, 2024) and has published in leading international journals including the Cambridge Law Journal, University of Toronto Law Journal and Melbourne University Law Review.

Read Dr Fell's biography and publications