This article seeks to contrast two ways of articulating the harms that tort law aims to redress. On a dominant, “bipolar”, model, the wrong (breach of duty/violation of a right) is contrasted with the losses that flow from it. These losses are either pecuniary or not, in which case they will boil down to emotional harm. This can be contrasted with a “unipolar” model, whereby the loss or harm suffered by the claimant becomes the diminution of the right considered in itself. This alternative model tends to surface when the first one breaks down, i.e. is incapable of explaining the outcome of court decisions. While the two models are both coherent (albeit not to the same extent), they ought not to be combined because of conflicting rationalities; neither is it helpful to meander between them the way courts (and legal scholars) tend to do. The article examines the way the two models relate to one another and considers some implications the choice between them has, in particular in terms of our understanding of the concept of loss and the relationship between compensation and vindication in tort law.
|Journal||Law Quarterly Review|
|Publication status||Published - Oct 2016|