Rationalising Recovery for Emotional Harm in Tort Law
134 Law Quarterly Review (2018), 602-26
24 Pages Posted: 10 Sep 2019
Date Written: April 1, 2017
The recovery of emotional harm - mental distress in the widest sense of the term - has long bedevilled the law of tort. Whereas the compensation of financial loss appears systematic and grounded in clear principles, that of harms on the other side of the divide between “having” and “being” seems the realm of haphazardness. This article is a search for general principles in a field that has largely eschewed them. It argues that, properly examined and understood, the law does in fact closely approximate a strikingly simple proposition, namely, that every wrong entitles the claimant to compensation for the ensuing emotional harm. This should be recognised and worked out systematically. It also explores some of the implications of, difficulties with, and alternatives to this proposition.
Keywords: Tort, loss, harm, emotional harm, non-pecuniary loss, pecuniary loss, aggravated damages, normative loss, special loss, quantum of damages
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