The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages
Jason N. E. Varuhas
University of Melbourne Law School; Centre for Public Law, University of Cambridge; Christ's College
October 1, 2013
Forthcoming (2014) 34 Oxford Journal of Legal Studies
University of Cambridge Faculty of Law Research Paper No. 45/2013
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 which 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”.
Published version now available via Oxford Journals OJLS Advance Access website.
Number of Pages in PDF File: 46
Keywords: damages, tort, vindication, rights, vindicatory damages, substitutive damages, user damages, remedies, compensation, false imprisonment, trespass, battery, defamation, torts actionable per se, Lumba
JEL Classification: K10, K13
Date posted: October 22, 2013 ; Last revised: February 11, 2014