Taxonomy of non-pecuniary losses in English tort law: normative losses and Consequential losses as organising concepts
Item statusRestricted Access
Embargo end date31/07/2022
Gutierrez Raymondova, Arantxa Telenia
Even though non-pecuniary losses are of great practical importance and arguably they are familiar to any actor in the legal system, the field is hugely understudied and there is a considerable lack of theorisation in several key areas. This thesis examines some general issues such as the effects that a lack of a stable structural language has on their taxonomy, as well as more particular questions such as the specific heads of losses compensated in the areas of privacy protection, defamation, and personal injury. A central argument developed by this work is that there are two main ways in which the legal system conceives non-pecuniary losses: some of them are better described as being normative, while others exhibit a bipolar or consequential structure. Where losses are aligned with the first model, the infringement of a protected interest is the loss, although an abstract one. Conversely, in a consequential model the wrong and the losses that flow from it are conceptually separated, being concrete in nature, as for example pain and suffering or psychiatric injuries, among others. A comparison is drawn with French law, where the theory of personality rights has been developed and expanded for more than a century, and the tension between these two models is more clearly identifiable. The comparative exercise advances the purpose of highlighting the problems faced by English law given its lack of a systematic treatment of non-pecuniary losses. This is achieved by analysing the specific heads of non-pecuniary losses regularly compensated by the courts in the context of privacy protection, defamation and personal injury, to expose whether they are operating at a normative or consequential level. In doing so, one gains a clearer understanding of the reasons why the general reference to the term ‘non-pecuniary loss’ has such a weak analytic power in English law, and is often implicit, if not completely forgotten.