The Standardisation of Tort Damages
| Published date | 01 January 2021 |
| Author | Eric Descheemaeker |
| Date | 01 January 2021 |
| DOI | http://doi.org/10.1111/1468-2230.12564 |
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Modern Law Review
DOI:10.1111/1468-2230.12564
THE
MODERN LAW REVIEW
Volume 84 January 2021 No. 1
The Standardisation of Tort Damages
Eric Descheemaeker∗
This article explores the nature, scope, rationale and merits of the standardisation of compen-
satory damages in tort law,ie the fact of g iving the claimant not the value (subject to ordinary
limiting principles) of his own loss, but that of the loss which an ordinary claimant placed in
the same circumstances would have suered. Standardisation happens in respect of pecuniary and
non-pecuniary losses, direct and consequential losses, and also normative losses. Its two main
spurs are either that the orthodox award would not give the desired result—typically ‘too little’
damages—or that it runs into evidentiary diculties, which the award of a typical sum overrides.
While epistemic standardisation (which is not strictly standardisation) might be acceptable, the
avowed granting of compensator y damages which do 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 meaningfully standardised.
Does the award of compensatory damages in tort seek, at least prima facie,
to undo—by monetary equivalent—the consequences of the wrong on the
claimant? The question seems to admit of only one answer: of course it does.
The pr inciple, often known as restitutio in integrum, is possibly the most foun-
dational principle governing the area, as universally accepted as its judicial in-
terpretation in The Liesbosch: ‘[the claimants] should recover such a sum as will
replace them, as f ar as can be done by compensation in money, in the same
position as if the loss had not been inicted on them’.1Yet, a closer look at
the authorities brings out many diculties: situations where what the claimant
receives by way of compensatory damages would seem to be either more or less
than the loss he has suered. (Any attempt to unpack them immediately runs
∗University of Melbourne. The bulk of this article was wr itten while on the Allan Myers exchange
programme with the University of Oxford in the—European—summerof 2019. A debt of gratitude
is due to Birke Häcker for her generous hospitality at the Institute of European and Comparative
Law; and to Kit Barker,Andrew Burrows, James Edelman,Birke Häcker again, Jonas Knetsch, Liam
Murphy,Helen Scott, Sandy Steel, Sir Michael Tugendhat and members of the personal injur y group
at Hailsham Chambers for their help with various aspects of the research. I am also indebted to the
Review’s anonymous referees for their perceptive comments on an earlier draft.
1Liesbosch Dredger vEdison Steamship [1933] AC 449, 459 (the sentence continues:‘subject to the
rules of law as to remoteness of damage’: see below, ‘Dening Standardisation’).
© 2020 The Author.The Modern Law Review © 2020 The Modern Law Review Limited. (2021) 84(1) MLR 2–29
Eric Descheemaeker
into the central diculty that ‘loss’ is a concept which does not have a stable
meaning, but this compounds the diculties rather than resolves them.)
This calls for examination. Obser ving these ‘irr itants’, the working hypoth-
esis which presents itself is that what the claimant receives might be better ex-
plained as compensation, not for what he has in fact suered on the facts of the
case,but for what an ordinary claimant would have suered in those circumstances—or,
to put the same point slightly more provocatively, for what he should have lost
rather than what he did in fact lose. This is what this article calls the ‘stan-
dardisation’ of compensatory damages and aims to subject to cr itical scrutiny.
The topic is not only of great practical and theoretical signicance in its own
right; it also yields impor tant insights into broader questions, such as the way in
which we construe compensable detriments or the relationship between right,
damage (or wrong or injury) and loss.
The aim of this work is twofold:rst, to examine the extent to which such
‘standardisation’ of damages occur s in tort law and why; second, to assess its
merits. In the end it will be argued that standardisation, while acceptable when
it is no more than epistemic—ie a bona de attempt to approximatethe claimant’s
own loss in a situation of evidential uncertainty—ought to be resisted when it
becomes ontological, ie when the award is made as a matter of principle even
when it is observably at odds with the claimant’s particular loss (standardisation
in a nar rower, and strict, sense of the ter m). Standardised damages, of which the
most extreme form is that known as ‘abstract’ or ‘normative’damages, signal the
intrusion into the orthodox understanding of compensatory damages of a logic
which is not only undesirable and impossible to achieve, but irreconcilable with
the traditional—and still dominant—logic of the law. Accordingly this article
can be seen as an eort to understand the orthodoxy in a deeper and ner-
tuned way, so as to protect it from these profoundly disruptive (and indeed
unnecessary) developments.
It consists of three main parts,the r st two of which examine, respectively,the
extent to which, and the reasons why, the law standardises awards; and the last
of which defends the anti-(strong) standardisation argument. The conclusion
then links this argument back to broader theoretical considerations concerning
tort law damages. Briey, however,standardisation must rst be dened.
DEFINING STANDARDISATION
Like many others, the concept of standardisation has a straightforward core
but ill-dened boundaries. At its simplest, the law standardises an award (of
compensatory damages in tort) when its quantum does not reect the claimant’s
own—‘personalised’—loss, but rather the loss that he would ordinarily have
suered. To take a couple of examples, when two claimants receive the same
sum to compensate their bereavement after they had their spouses wrongfully
killed by the defendant, even though one was demonstrably very close to his
while the other couple was known to be estranged, their—non-pecuniary—
damages are standardised. Again, when two claimants whose (identical) car was
(identically) bumped both receive the (identical) market value of the repairs,
© 2020 The Author.The Modern Law Review © 2020 The Modern Law Review Limited.
(2021) 84(1) MLR 2–29 3
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