Damages Without Loss

(2023) 139 Law Quarterly Review 219

23 Pages Posted: 28 Apr 2023

Date Written: April 17, 2023

Abstract

One of the most disputed issues in the law of damages in recent years has been the existence and justification of substantial damages awards for private law wrongs in circumstances in which the victim of the wrong has suffered no loss. Some argue that such awards exist and are justifiable on the basis that they vindicate, in some sense, the rights of the person wronged.Others argue that a sophisticated loss-based analysis of these awards can in fact explain and justify all or most of the law. Finally, some argue that, while such awards do exist, they cannot be reconciled with the fundamentally loss-centred approach to damages in English law and so should be rejected.

In this article, I make two contributions to the debate about the existence and justification of damages awards without loss. First, after introducing some important analytical distinctions about the concept of loss, I show that there are indeed awards, normally described as compensatory, which do not aim to compensate for loss. While others have argued for a similar claim, the analysis here does so in a distinctive way: by focusing on the counterfactual nature of the concept of loss; in addition, it responds to recent attempts to salvage a loss-based analysis of certain awards. Secondly, it examines in greater depth the possible normative foundations of damages without loss. I argue that non-loss-based awards can be justified, (i) by the duties that wrongdoers incur upon breaching a duty to serve the underlying goal of the original duty which has been breached, (ii) as a matter of fairness, and (iii) tentatively, in some cases, as a matter of expressive vindication. I show how the existence of such awards does not undermine, but may sit coherently alongside, damages for loss. In short, the article provides an analytical and normative defence of damages without loss.

Keywords: Loss, Damage, Damages, Tort, Rights, Vindication

Suggested Citation

Steel, Sandy, Damages Without Loss (April 17, 2023). (2023) 139 Law Quarterly Review 219, Available at SSRN: https://ssrn.com/abstract=4421070 or http://dx.doi.org/10.2139/ssrn.4421070

Sandy Steel (Contact Author)

University of Oxford ( email )

Oxford, Oxfordshire OX1 4AU
United Kingdom

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