Rationalising Recovery for Emotional Harm in Tort Law

134 Law Quarterly Review (2018), 602-26

24 Pages Posted: 10 Sep 2019

See all articles by Eric Descheemaeker

Eric Descheemaeker

University of Melbourne - Law School

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

Suggested Citation

Descheemaeker, Eric, Rationalising Recovery for Emotional Harm in Tort Law (April 1, 2017). 134 Law Quarterly Review (2018), 602-26. Available at SSRN: https://ssrn.com/abstract=3447002

Eric Descheemaeker (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010

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