Unravelling Harms in Tort Law

Eric Descheemaeker*

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.

There exists in English law a deep-seated tendency to distinguish between two strands within the law of torts: one concerned with rights and the other with loss. From the old division between trespass and case, to the stark contrast drawn by Tony Weir between two functions of tort law – namely to “ordain compensation for harm caused” and “vindicate constitutional rights” –1 to Robert Stevens’ distinction between damages “substitutive” for a right infringed and damages compensatory for a loss,2 the idea has proved pervasive and remains influential. Yet doubt has been cast as to the tenability of such dichotomies in any strict sense. Few would want to deny that rights also underpin the law of negligence, if perhaps in a less immediate way, or that harm permeates trespassory actions as well; and it has been argued, rightly, that taking seriously the alternative between infringements of rights and compensation for loss would lead to unacceptable

** Reader in European Private Law, University of Edinburgh. I have benefited enormously from discussions following presentations of this paper at various stages of its development: at the Cambridge Private Law Centre (6 May 2015), the T.C. Beirne School of Law, University of Queensland (8 July 2015), the Obligations Group, University of Melbourne (23 July 2015), the Faculty of Law, University of Western Australia (31 July 2015) and the School of Law, Singapore Management University (4 August 2015). Much of the writing was done while on a Distinguished Research Fellowship at the University of Queensland; special thanks are owed to Kit Barker for his generous and intellectually stimulating hospitality in Brisbane.1 T. Weir, A Casebook on Tort (10th edn, London: Sweet & Maxwell, 2004), at p.322.2 R. Stevens, Torts and Rights (Oxford: Oxford University Press, 2007), at p.60.

results.3 Yet the sense that two forms of logic really are at play remains.

What this article argues is that the tension observably experienced by the law of tort is in fact caused by a conflict of a different nature, which needs to be identified if we are to resolve it. The opposition is not between rights on the one hand and loss on the other hand, which is a false dichotomy; rather it is between two different ways of understanding the relationship between the right (or the wrong) on the one hand and the loss or harm on the other – and, inextricably bound with it, two ways of articulating what the compensable detriments are that the claimant can recover for. The conflict is between one model, historically dominant, which sees the wrong – i.e. the violation of a right – as transparent in itself, the law looking to its factual consequences in order to compensate them, and an alternative model, increasingly influential in an age saturated with the language of rights, which sees the wrong itself as the compensable injury suffered by the claimant. These models, described respectively as “bipolar” and “unipolar” because one thinks in two stages which the other conflates into one, both have a long history but they are predicated on incompatible logics. For this reason, they ought not to be allowed to coexist within the law (a temptation that has not always been resisted, especially in the more recent past), whether this coexistence means switching back and forth between them or, worse, combining them in respect of the same cause of action. This article does not aim to decide between them, too many foundational issues having to be resolved before we are in a position to do so. Its ambitions are more modest, if still important: they are to identify these two models and understand their logic; to explain why they are incompatible and must be chosen between; to provide an overview of the current state of the law; and to examine the consequences that the choice has on some key issues within the law of tort, in particular the position of juridical persons, the meaning of loss – in the sense of compensable detriments – and the role of non-compensatory, but still claimant-focused, measures of money awards such as nominal and vindicatory damages. These four points correspond to the four parts that follow.

I. Two Models of Tort Law

We start by exploring the two models that underpin tort law and, in particular, the way the law understands the relationship between the wrong and the harms that it seeks to redress.

1. A Note on Terminology

The use of these words, “harm” and “redress”, might surprise. “Loss” is the word more commonly used to refer to the sort of 3 See below fn. 29.

detriments tort law will compensate. The difficulty with it is twofold. For one thing, it is caught between different and incompatible understandings for the very reason that this papers examines, namely, the fact that there exist different ways of articulating compensable detriments. It is difficult to think cogently on the basis of an unstable word. Though “loss” is too well established to be done away with, it is better to use, at least as a starting point, a different (and looser) word to designate loss at its widest, i.e. any detriment: the actualisation of events which make the claimant worse off than they would otherwise have been – hence “harm”.4 Besides, on some readings of loss, the law of tort will find itself confronted with detrimental situations where it cannot identify a loss but will still want to grant a remedy through a monetary award which, by construction, will not be compensatory for loss. Nominal and vindicatory damages are two cases in point. We need a word to express their function that does not beg the question that they are concerned with compensating the loss or harm, hence “redress”.5

2. The “Bipolar” Model: Wrong and Ensuing Losses

a) PresentationOn the arch-dominant model on which English law (though not only English law)6 is predicated, a stark contrast is drawn between the wrong and the losses that flow from it.7 A wrong in that context is a set of events, the occurrence of which gives the claimant an action in tort. In modern scholarship it is typically analysed as a breach of

4 Naturally the language of “worse-offness” is wider, but none of the competitors are particularly attractive. “Damage” has probably become too inextricably tied to the sort of physical corruption we contemplate when we speak of “damage to property” to be useful; and “injury” is unsuitable for the very reason that makes it a convenient label, namely, its constant oscillation – and refusal to choose – between the wrong and the consequences of the wrong.5 This article only concerns itself with claimant-focused damages, i.e. money awards which are assessed on the basis of facts that are related to the claimant. It ignores both non-monetary awards and damages which are defendant-focused, in that they are valued on the basis of defendant-related facts, such as restitutionary, disgorgement or punitive awards, which raise separate issues. The relationship between these types of damages is returned to below: see text at fn.82-90.6 This article has no comparative ambition, but it is worth mentioning that the rest of the common-law tradition does not appear to be any different, and also that the conflict of models is not one between the common law and the civilian tradition. Both models (as will be seen) have roots in the Romanist tradition, and modern civilian systems can be seen to exhibit the same sort of tensions as English law. 7 Because “loss” is invariably meant in that context in a sense on which everyone agrees, its use is not problematic here.

duty or, using the reverse perspective, the violation of a right8 (as distinct from the historically contingent cause of action through which it will be remedied, e.g. negligence, trespass, nuisance). The physical injury, damage to property, defamatory statement, breach of privacy, deprivation of liberty, etc constitutes the wrong. Losses, on the other hand, are harms (injuries, detriments) which flow from the wrong and are therefore, by construction, distinct from it.

In turn, these losses will be regarded as falling in two classes: pecuniary or non-pecuniary.9 Pecuniary loss is loss that is directly valuable in money or, to put the same point in the layman’s language, that leaves the claimant “out of pocket”. Non-pecuniary loss, by contrast, comprises those noxious consequences which flow from the wrong but are not so directly valuable: what French law calls “moral loss”, i.e. an injury to the claimant’s “being” rather than “having”. While there is a number of (often overlapping) labels used by courts and scholars, and no commonly agreed taxonomy, it has been rightly remarked by Andrew Burrows that all these losses are reducible, in the final analysis, to mental distress in the widest sense of the term: emotional or sentimental harm, which Burrows calls “loss of happiness”.10 Injuries that flow from the wrong are either to the claimant’s wallet or to the claimant’s mind.

The important point for our purpose is that the wrong, on this model, is transparent. It needs to be there because it is what makes the ensuing losses wrongful, but it is a mere peg. What the law looks to in order to compensate them is the consequences of the wrong – the underlying rationale being that, once it has made up for these noxious effects (insofar as money allows) then, as far as the law is concerned, the wrong has been blotted out. We can call this is a consequentialist model or, because of this two-stage enquiry (looking first at iniuria and then damnum, to use Latin

8 How rights are to be defined is naturally a complex question. In order to avoid unnecessary difficulties, examples in this article build on the core sense of rights as protected interests (see text below, at fn.16) – more specifically that section of the “legal good” that is protected by the law, in the sense that a remedy will be provided if it is infringed. Unless one starts defining rights in terms of harm or loss (e.g. a “right not to be caused physical injury”), which is intelligible but will be eschewed here, there is no reason why the content of the right should bear on the applicability of the two present models. 9 See e.g. C.T. Walton et alii, Charlesworth & Percy on Negligence (13th edn, London: Sweet & Maxwell, 2014), at §5–91: “the claimant has usually suffered damage of two separate kinds, namely pecuniary and non-pecuniary loss”. The point is not limited to negligence and is widely accepted across the law of tort. 10 A. Burrows, Remedies for Torts and Breach of Contract (3rd edn, Oxford: Oxford University Press, 2004), at p.31: “ultimately all non-pecuniary loss is concerned with the claimant’s distress or loss of happiness”. The same point is implicit in the categorization of non-pecuniary losses in McGregor on Damages: (i) “physical inconvenience and discomfort”; (ii) “pain and suffering and loss of amenities”; (iii) “mental distress”; (iv) “social discredit” (Harvey McGregor et alii, McGregor on Damages (19th edn, London: Sweet & Maxwell, 2014), at §5–003).

terminology that is not infrequently pressed into service in that context),11 the “bipolar” model of tort law.12

b) OriginsWhile this piece is not historical, it is helpful to understand the model to say something of its origins. They are ancient and, perhaps unsurprisingly, civilian. The Roman law of delict contained two main heads of wrongdoing: damnum iniuria datum – loss wrongfully caused – and iniuria – insult, contempt. Damnum iniuria, the direct ancestor of general principles of harm caused by fault in modern civilian systems (which has also had not inconsiderable influence on the common-law tort of negligence) can clearly be seen to have followed this two-stage logic. Under this action the wrong was the causation of physical damage to the thing, but the loss redressed by the law was the financial detriment that flowed from it (damnum in the technical sense of the term, i.e. economic loss). One important consequence of this sequential analysis was that, if no damnum did in fact ensue, no remedy would be available for the wrong. Ulpian’s (in)famous example of the castrated slave-boy, whose value actually went up when he (in law, a thing) was damaged, provides a good illustration.13

The other main pillar of the Roman law of delict was iniuria, a transversal wrong of contemptuous behaviour which visited such acts as slapping another in the face, entering their home uninvited, mounting a clamour against them or stalking them in the street – all intentionally and without justification.14 Such acts led to the payment of a money award called a poena. Originally there is no doubt that this award was understood as a private penalty paid by the defendant to the claimant. In the later civilian tradition, however, it came to be reinterpreted (in line with the rest of the law of delict or tort) as compensatory. If it is to be compensatory there must naturally be a harm or loss to compensate, and Roman-Dutch writers in the South African tradition came to understand it as the injury to the claimant’s feelings: their “sentimental loss” or

11 A terminological note of caution: when used by English lawyers, the word damnum tends to mean loss generally; however in Roman law it referred specifically to financial loss (or, to put the same point differently, their understanding of loss/damnum was limited to financial detriment). Both uses co-exist within this article. 12 This is not meant to imply that other areas of private law think differently. It is likely, for instance, that everything that is said about torts in this article can also be applied to breach of contract. But this is not a point that I wish to make and defend here. 13 D.9.2.27.28 (Ulpian, 18 Edict): “Further, if someone castrates your slave-boy and thus increases his value, Vivianus writes that the lex Aquilia should not apply, but that you should instead bring the action for insult [iniuria] or sue under the edict of the aediles for four times his value” (tr. Watson Digest).14 For an introduction from an English perspective, see the collection of essays in E. Descheemaeker and H. Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013).

“pain of mind”.15 Wounded feelings came to play in respect of iniuria the same role as damnum, economic loss, in respect of the lex Aquilia. On the one hand the wrong; on the other the consequences, financial and emotional, of the wrong: at that point, the bipolar model can be seen to have been fully operational.

3. The “Unipolar” Model: Wrong as Loss

a) Presentation, illustration, originsAgainst this bipolar model another model can be set, the logic of which is to conflate the wrong and the loss, i.e. to equate the loss with the injury to the right. On this alternative framework, the wrong is still the violation of the claimant’s right or protected interest – their “liberty, physical integrity, land, possessions, reputation, wealth, privacy, dignity”, etc –16 but the harm they have now suffered is that they have been wronged: their right has been interfered with, invaded, encroached upon, violated, “abstracted”; and this is the detriment they have suffered.

To illustrate this logic with the example of the law of privacy,17 on that “unipolar” (or “deontic”) model,18 the breach of the claimant’s privacy will be regarded as correlating with a loss identified as “loss of privacy”: the breach of privacy is the wrong, the loss of privacy the harm. But, crucially, loss of privacy is not a detriment that flows (contingently or even necessarily) from the wrong of breach of privacy, as per the above model: rather it is the breach of privacy itself considered from another vantage point. It is analytically there by virtue of the breach having been committed; to put the same point differently, saying that the claimant has suffered the wrong of breach of privacy and saying that they have lost (some of) their privacy are exactly the same proposition. We are no longer talking about a concrete loss that flows from the violation of a right, rather we are talking about an abstract loss or harm defined as the injury to the right itself. By contrast, on the above bipolar model, the wrong would still be the breach of the claimant’s privacy, but the redressible losses would be the mental distress suffered coupled with any pecuniary consequences of the wrong. On one analysis the injury to the claimant’s privacy leads 15 E.g. M. de Villiers, The Roman and Roman-Dutch Law of Injuries (Cape Town: Juta, 1899), at p.25.16 The list is Tony Weir’s: “There are several good things in life, such as liberty, physical integrity, land, possessions, reputation, wealth, privacy, dignity, perhaps even life itself. Lawyers call these goods ‘interests’.” (Weir, A Casebook on Tort (2004), at p.6). On the status of “wealth” on this list, see text below, at fn.44-45.17 The fledging law of privacy is perhaps the clearest example, not only of the conflict between the two models in abstracto but of the many hesitancies of the law; it therefore features prominently in this article. For a fuller analysis, see E. Descheemaeker, “The Harms of Privacy”, 7 Journal of Media Law (2015), forthcoming.18 “Unipolar” because it combines the above two poles, wrong and loss, into one; “deontic” because it is not – at least not on its face – consequentialist.

(or rather, may lead) to a concrete loss of happiness and of money; on the other it correlates (by virtue of analytical necessity) with an abstract loss of privacy.

This alternative model also has a long and civilian pedigree. It can be traced at least to the high scholastics, in particular Thomas Aquinas who understood harm as the fact of being deprived of what belongs to one: not simply things external but also one’s own person: one’s limbs, dignity and the like.19 Three and a half centuries later, we can see this form of thinking impeccably worked out in Grotius’ Law of War and Peace. Immediately after having set out the principle that an obligation exists under natural law to make good any loss (damnum) brought about by a culpable act (culpa), he goes on to define loss as the condition of having “less of one’s own” (minus suo).20 We are endowed by the law with rights which protect the “goods” – in modern terminology the interests – to which we aspire: according to Grotius, our life, our body and limbs, our reputation, our honour, our (contractual) actions. As the defendant interferes with these by killing or wounding the claimant, by defaming them, ravishing their daughter or interfering with their contractual entitlement, they suffer loss. The claimant now has less of their life, bodily integrity, reputation, etc., than they did before the wrongful act. The good in which the right resided has contracted; by extension we can say that the right itself has been diminished; i.e. the claimant has “less than their right”,21 and it is this diminution which constitutes the loss.

Any time we define loss, or harm, in this abstract way as the violation of a right per se – as the physical injury, damage to property, harm to reputation, loss of privacy, loss of autonomy, loss of use or any other “right-diminution” – rather than its concrete consequences on the wallet and the mind, we switch over to this alternative, “one-stop” model. To use Tony Weir’s terminology, we abolish the distinction between the iniuria and the damnum.22 The damnum (loss) now is the iniuria (wrong).

b) Noxious consequences on the unipolar modelThis immediately raises the question of what happens, on this alternative model, to the concrete detriments (pecuniary loss and mental distress broadly construed) that were regarded as the compensable losses on the first model. While the details are complex, the broad lines are straightforward. If the two frameworks are to reach even remotely similar results, which of 19 T. Aquinas, Summa Theologica (Basel: Wenssler, 1485), Part II.II, Q.61, art.3 [originally written 1265-74].20 H. Grotius, De Iure Belli ac Pacis (Amsterdan: Blaeu, 1646), at §2.17.2 [originally published 1625].21 Richard Tuck’s translation, in context, of “minus suo” (H. Grotius, The Rights of War and Peace, ed. by R. Tuck (Indianapolis: Liberty Fund, 2005), vol. 2, at p.884) [“his Right” in the original].22 T. Weir, “La notion de dommage en responsabilité civile”, in P. Legrand (ed), Common law d’un siècle l’autre (Cowansville: Yvon Blais, 1992), 1 at p.6.

course they are given that they both seek to explicate how tort law actually operates, they must be interested in the same harms even as they interpret them differently.23 From this it follows that the diminution of the right must factor in the consequences – at least the direct consequences – of the wrong. In other words the (abstract) right-diminution, i.e. the infringement of the claimant’s right, is to be understood as the reverse side of these two (concrete) injuries, the economic loss and the emotional distress flowing from the wrong, and measured accordingly.24 Let us illustrate this by looking at two examples, one from the “having” side of the law (pecuniary loss) and the other from its “being” side (non-pecuniary loss/sentimental harm), starting with the latter because this form of thinking is more familiar in the context of personality rights.

EXAMPLE 1: Through the defendant’s wrongful conduct, the claimant is physically injured and loses their sense of taste and smell. According to the Guidelines published by the Judicial College – which are extremely helpful here because, by stabilising the amount of the award, they make it possible for us to analyse its basis – the claimant is entitled to “in the region of £28,750” by way of “general damages”.25 We know that these £28,750 are compensatory in nature and we also know that the harm or loss that they compensate is not pecuniary loss, which counts as “special loss” and is recoverable separately if it satisfies the ordinary rules of causation, remoteness, etc. So what do these £28,750 compensate? There are only two possible answers. One is that they compensate for mental distress in a broad sense of the term. This is the dominant interpretation: the award makes up for the non-pecuniary noxious consequences of the wrong, which in that context the law calls “pain and suffering and loss of amenities” (PSLA).26 It is consonant with the bipolar model.

23 For the view that consists in adding the two ways of thinking, see text below, at fn.37-45.24 We leave aside for now the issue of consequential loss, which is returned to in point d).25 Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (12th edn, Oxford: Oxford University Press, 2013), at p.20.26 Guidelines for the Assessment of General Damages in Personal Injury Cases (2013), at p.ix. The way this loss of happiness is construed complicates the picture. By and large the law is not interested in trying to measure the claimant’s actual distress; rather it tries to gauge how distressed a person ought to be, i.e. how affected an ordinary claimant would be. Although irritants can be found in the cases, an over-emotional claimant will not normally get more or an under-emotional one less. In that sense, both pain and suffering and loss of amenities are measured objectively. When we apply this term to the latter, as opposed to the former, what we mean is that English law (contrary to, for instance, Australian law) takes this process of objectification one step further in respect of it, being willing to award substantial damages to claimants who are unaware of their loss, for instance because they are permanently unconscious (despite amenities being, by definition, “pleasures”).

The other answer is to describe the sum as compensating for the physical injury itself, as indeed suggested by the very label used in the Guidelines: having lost their sense of taste and smell, the claimant has suffered a violation of their physical integrity and have less of it than before. They have been wronged and it is the diminution of their right that the law puts a monetary value on. Again, the physical injury is not a consequence of the violation of their right to physical integrity: rather it is the infringement itself. The loss (harm, injury) the claimant suffered is now defined abstractly by reference to the right violated, not concretely as before in terms of its consequences. Both answers – the distress and the physical injury – are correct for the simple reason that they describe the same injury in two different ways: by looking either abstractly at the wrong itself or concretely at its (direct) consequences. There are not two injuries but one approached from two different perspectives: already we can see why we should not combine them by redressing both.27

EXAMPLE 2: The claimant has their car smashed by the defendant. It costs £2,000 to repair it. Being a cab driver, the claimant loses a further £5,000 in earnings while it is being repaired. The latter counts as consequential economic loss, which we will return to shortly. (We also ignore for the sake of simplicity any damages for mental distress: it is not clear whether one can be compensated for it in damage to property cases anyway.)28 There remains the £2,000 for the repair. Clearly the claimant can recover for them, and clearly the money award is meant to compensate a loss or harm they have suffered. Again the question arises: what harm? The dominant answer, following the bipolar model, is that it compensates for the economic loss, i.e. the consequences of the wrong on the claimant’s pocket. The alternative answer, switching over to the unipolar model, would be to say that they compensate for the damage to property itself, i.e. the violation (or diminution) of the claimant’s property right, in other words, for the wrong they have suffered. The thing in which their right resides having been corrupted, they now have “less than their right”, or less of their right, than they did before; as with pain and suffering in the previous example, the law puts a monetary value on this diminution: £2,000. Again, these are two ways of construing the same injury.

c) “Substitutive” damages?The example of the smashed car will be familiar to readers of Robert Stevens’ Torts and Rights, from which it is borrowed. While his theory of “substitutive damages” does not align with either model expounded here, it is of special interest in the present

27 See below, Part II.28 The trend is clearly towards allowing recovery, whether in negligence or in trespass, but courts have not articulated any clear principles: see references in McGregor et alii, McGregor on Damages (2014), at §5–013.

context because it represents an attempt to move away from the dichotomy between the wrong and its consequences in the context of property rights and the tort of negligence (and not simply, or as opposed to, the specific causes of action protecting personality rights, where this form of thinking had made significant headway already). In turn, this reduction of the analysis from two levels to one should make the idea of a unipolar model much less alien to mainstream tort scholars than it would otherwise have been. Despite echoes, there are however profound differences between it and Stevens’ theory, the main two of which being the following:

(i) Stevens does not think in terms of right-diminution but of right tout court. He does not say that substitutive damages are substitutive for the infringement but for the right itself. This opens him to devastating criticism which, to my mind, could be avoided by adjusting the model.29

(ii) More importantly, and consonant with the long line of thinking mentioned at the outset, Stevens insists on setting rights and loss against one another: tort damages, in his mind, are sometimes substitutive for a right and sometimes compensatory for a loss.30 It is one or the other. By contrast, on the unipolar model of tort, right and loss are the flipside one of the other: the violation of the claimant’s right is construed both as the wrong they have suffered and as their loss. On that reading, tort law is not sometimes about rights and sometimes loss; it is at the same time, and inseparably, all about rights and all about loss. Having however insisted on the alternative, Stevens finds himself forced to say that damages substitutive for the [diminution of the] right are “not compensatory for loss at all”.31 This leaves him with a simple choice, both terms of which would seem to be equally absurd: either the cost of repair, in our above example, is not a loss at all, to the effect that only further (i.e. consequential) loss qualifies as loss, which defies both common sense and overwhelming usage; or it is a loss but one that does not get compensated even though it is the harm most directly related to the wrong, which is contrary to reason. The dichotomy between loss and right proves itself to be untenable.

d) The problem of consequential lossWe return to finish this section to the further £5,000 in our earlier example, which were described as consequential economic loss and set aside in the first instance. In this context, “consequential” means “one step removed from the wrong”: confusingly, 29 A. Burrows, “Are ‘Damages on the Wrotham Park Basis’ Compensatory, Restitutionary or Neither?” in D. Saidov and R. Cunnington (eds), Current Themes in the Law of Contract Damages (Oxford: Hart Publishing, 2008), 165 at pp.181ff; J. Edelman, “The Meaning of Loss and Enrichment” in R. Chambers, C. Mitchell and J. Penner (eds), Philosophical Foundations of the Law of Unjust Enrichment (Oxford: Oxford University Press, 2009), 211 at p.220. 30 Stevens, Torts and Rights (2007), at p.60.31 Stevens, Torts and Rights (2007), at p.62.

consequential loss is not the same as loss that is a consequence of the wrong (which naturally the £2,000 also are), but loss that is not direct or immediate. Typically it will be economic, although it could in principle be any harm (e.g. a person gets sick as a result of being defamed).32

We know that, as a matter of law, such loss is recoverable according to the usual set of rules which aim to draw a line between the detriments that can properly be attributed to the defendant’s wrongful conduct and those that cannot. While the result is not doubted, on the logic of the unipolar model it is not clear at all why this should be the case. If it is a different loss, by construction it should correspond to a different injury or wrong, hence the violation of a different right of the claimant’s. It is interesting to note that this “uncoupling” logic underpinned an important defamation case handed down by the Supreme Court of Appeal of South Africa in 2010. In Media 24,33 the claimant company sued the defendant newspaper for having published a defamatory statement alleging wrongful conduct on its part. It claimed – modest – general damages for the injury to its reputation and – much larger – special damages for the consequential economic loss (loss of business opportunities). The SCA answered that, while by suing in defamation (in a South African context, under the actio iniuriarum), the company could recover for the injury to its reputation, if it wanted to recover for its economic loss it would need to sue under a different cause of action, namely, injurious falsehood (regarded as part of the actio legis Aquiliae i.e. essentially negligence). A crucial consequence was that, in order to succeed, it would need to prove that the economic loss was wrongful according to the different – and, as in English law, much more restrictive – set of rules governing the recovery of economic loss in negligence. In other words, its economic loss was not consequential at all; it was pure. There was not one wrong with two sequential losses towed behind it but two wrongs running in parallel, each corresponding to a different loss (right-diminution) even though they arose from the same facts: on the one hand the defamatory statement, causing a decrease in the claimant’s reputation; on the other the negligent causation of economic loss, causing a depletion of its wealth.

II. Keeping the Two Models Separate

If the above is correct, we are now in a position to accept that both models are interpretative frameworks capable, at least prima facie, of making sense of the entirety of tort law, and also that their

32 As these two examples illustrate, it may or may not be of a different nature from the primary harm.33 Media 24 v S.A. Taxi Securitisation (437/2010) [2011] ZASCA 117, 2011 (5) SA 329; and see E. Descheemaeker, “Three Keys to Defamation: Media 24 in a Comparative Perspective” (2013) 130 SALJ 435 at 439ff.

logics are incompatible. From this it follows directly that there is nothing to be gained from their coexistence within the law. Shifting from one to the other would, at best, be an unnecessary complication, whereas combining them is bound to lead to double-counting of the same injury hence to double recovery. Both models are interested in the same factual situations but approach them from two different perspectives, one looking at the concrete detriments flowing from the wrong (the assumption being that, once these have been compensated, the wrong itself has for all intents and purposes been blotted out); the other at the abstract loss-wrong, which is understood in such a way as already to factor in the direct consequences, whether financial or emotional, suffered by the claimant. Being complete systems, the two models cannot and should not be mixed.

1. The Basic Principle

This basic principle can be illustrated by reference to the two earlier examples, which we will take in reverse order.34

The owner of the smashed car can recover £2,000: this much is certain. As was said, this can be interpreted either (on the bipolar model) as the direct economic consequences of the wrong or (on the unipolar one) as the diminution of the claimant’s property right in the car. But it is self-evident that the two cannot be added: if the claimant recovers £2,000 as their economic loss, they cannot get any further award for the very fact that their chattel has been damaged; conversely if they recover £2,000 for the violation of their right, they cannot recover a single extra pound for their loss. This is recognised by Stevens whose theory, while markedly different from the unipolar model,35 nonetheless adheres to the same logic on this point: “[w]here substitutive damages are recoverable and result in full compensation of loss, no further award should be made. The claimant cannot recover twice”.36 Exactly the same reasoning applies to the other example: the £28,750 which we know the wounded claimant can recover can be interpreted either as compensating for the mental distress (“PSLA” i.e. the noxious emotional consequences of the wrong) or as compensating for the physical injury itself; but it cannot be both cumulatively. Because there is only one injury that can be looked at from two different perspectives, there should be only one award – not two.

34 These two examples are easier because each right-violation is correlated with one type of noxious consequences rather than two, but the logic would remain exactly the same if we combined them, each right-diminution having not one reverse side but two: the – direct – consequences on the wallet and on the mind. These have to be added to value the infringement of the right.35 See text above, at fn.29-31.36 Stevens, Torts and Rights (2007), at p.61.

2. A Complication: Introducing (and Refuting) a Third Model

a) Presentation and illustrationThe above two examples, in particular the second one, introduce us to possibly the most significant difficulty with accepting the separation between the two models. It is that, in principle, there would be nothing absurd with a legal system that would compensate both the wrong and its consequences. Subject to the point in section b) below, we could have an award (of substantial damages) for the right-violation itself and another one for its noxious consequences if and to the extent that they do arise. We could, but it is simply not the way the law thinks; and nothing would be worse than allowing irreconcilable rationalities to coexist within it even when, taken on their own, they are intelligible.

The attractiveness of this third model consisting in the combination of the two levels (i.e. wrongs and their consequences), and the reason why it ought nonetheless to be rejected, can be illustrated with reference again to the law of privacy. As was said,37 on the dominant bipolar model the wrong of breach of privacy is – like any wrong – transparent; what is compensated by the law is – as ever – its pecuniary or emotional consequences. In most situations, because the wrongful exposure had no financial adverse effects, this will mean compensating for distress and distress only. This is the basis on which, for instance, the seminal Campbell case was decided.38 The unipolar model, on the other hand, redefines the harm abstractly as being the loss of privacy which, as mentioned, is not a consequence of the wrong but the wrong itself: the violation or diminution of the claimant’s right to privacy. Unsurprisingly, courts tend to switch over to that alternative model when there are no noxious consequences yet they feel they ought to grant more than nominal damages.39 Weller is a case in point:40 Paul Weller’s infant twins were photographed while out in Santa Monica and the snapshots published online by an English newspaper. They clearly suffered no economic loss as a result; being entirely unaware of the fact that they were being wronged, they were not distressed either. The court decided that they should nonetheless receive substantial damages for the breach of their privacy, a reasoning that embodies the logic of the unipolar model: the loss was (re-)defined as the injury to their right. Importantly, on the logic of that model, they

37 See text above, at fn.17-18.38 Campbell v M.G.N. Ltd [2004] UKHL 22, [2004] 2 A.C. 457, at e.g. [33], [34], [75], [81], [98], [124], [130], [158], [168]-[169]; cf, in the Court of Appeal ([2002] EWCA Civ 1373, [2003] QB 633), at [55] and, in the High Court ([2002] EWHC 499, [2002] EMLR 30), at [1]-[2] (“Miss Naomi Campbell … seeks damages for breach of confidentiality … She claims that … she suffered distress, embarrassment and anxiety”), [141].39 See further text below, at fn.89.40 Weller v Associated Newspapers Ltd [2014] EWHC 1163 (QB), [2014] EMLR 24 (affirmed on appeal: [2015] EWCA Civ 1176, unreported).

should not get more for any distress normally associated with the wrong because, as was said, it is analysed as a flipside of the right-violation.41 Naturally there was none for the twins – the very reason why the Court had to switch to the abstract model – but what complicated the case was that there was in fact a third claimant involved: the singer’s teenage daughter, who was actually upset by those events. Contrary to her half-brothers she did suffer mental distress. What should be done? The Court decided that it would be fitting to give her more: in those circumstances £5,000 rather than the £2,500 awarded to the infants.42

This sounds plausible enough, perhaps even appealing, but it is nonetheless wrong. It amounts to reintroducing through the back door a logic that was set aside when the Court decided to move over to the unipolar model and its abstract understanding of loss. Again, neither the car owner nor the person who lost their sense of taste and smell receive one award for the fact that they were wronged and another one for the noxious consequences: leaving aside the issue of consequential loss, they get a single award which, as was seen, can be interpreted in two different ways. While it is not irrational to combine them, it does introduce yet a further rationality which cannot be squared with either of the previous two: effectively a third, “combinative” model. Another way of seeing that this is counting the same injury twice according to ordinary principles of tort law is to ask why Naomi Campbell did not, contrary to the Weller daughter, get an award for the loss of her privacy as well as one for her distress, given that her privacy had also (definitionally) been wronged. The answer is, because that was already taken care of when she got damages to compensate her for the ensuing distress: this is how the consequentialist model works. While the arbitrary amount of the awards makes it very difficult to prove that double recovery is occurring, it should not be difficult to accept that the law must choose between three logics which are incompatible:43 (i) making one award for [ordinary] distress, which is regarded as indirectly compensating for the loss of privacy itself (bipolar model); (ii) making one award for loss of privacy, which factors in the direct [and ordinary] emotional consequences of the wrong (unipolar model); and (iii) making one award for the abstract loss of privacy and one award for the [ordinary] concrete distress (case of Dylan Weller). Because the third one is, as was said, wholly incompatible with the rest of tort law as it has developed over centuries, and must be rejected on that basis, we are back to the previous alternative: bipolar vs unipolar model; distress or loss of privacy.

41 Distress redressed through aggravated damages would be different: see text below, at fn.59.42 Weller [2014] EMLR 24 at [197].43 We leave aside any pecuniary loss for the sake of simplicity.

b) Wealth and emotional wellbeing: primary or secondary interests?Some readers might at this point be thinking that something is not quite right with the above dichotomy drawn between the two models. In particular, they might want to argue that the unipolar model is not doing what it says on the tin. It was presented as an alternative to the dominant consequentialist model. But it is not “deontic” in the sense in which the word is used in moral philosophy, i.e. in contradistinction from consequentialist forms of thinking. Rather, as was seen, the (direct) consequences of the wrong are regarded on that model as the reverse side(s) of the abstract loss-injury: as the law directly compensates for the diminished chattel or physical integrity, it indirectly compensates for the cost of the car repair or the mental distress. Importantly, this reasoning remains applicable even when there was no actual noxious consequences in the instant case: I am still entitled to the same award if I have no use for the thing and no intention to have the car repaired, or am unbothered by the media publishing photographs of me in breach of my reasonable expectations of privacy. Because the claimant placed in that situation will ordinarily suffer such detrimental consequences, the law decides to protect the right and to grant damages for its infringement. On the logic of the unipolar model, the enquiry is not to be reopened on a case-by-case basis.44

Certainly the critics’ point is true as far as it goes. The choice, as the law stands, is not between a deontic and a consequentialist model so much as it is between two ways of analysing these consequences and articulating their relationship with the loss that is made up for (and with the wrong itself). Indeed this is the reason why, in most cases, the two models will reach the same result and, accordingly, why the law has been able to maintain such a level of ambiguity between the two.45 Were this not the case, the unipolar model could not even hope to represent a plausible alternative interpretation of the law. Yet, provided one is happy to accept that it is entirely meaningful to speak of a diminished right based on the scope of the effects that the defendant’s conduct had on the claimant’s pocket and mind, we can accept a unipolar model while still taking into account the consequences of the wrong: the second level (i.e. the direct consequences, further losses being, as explained, a separate matter) is not eradicated; rather it is incorporated into the first (i.e. the wrong), to the effect that, by compensating the wrong itself, we are also – at least in part – compensating its consequences.

44 This opens the possibility of discrepancies between the results reached on the two models: these are explored further in Part IV. The matter is however far from straightforward; for instance, even on the bipolar model, the law could grant damages “for mental distress” when there is in fact no actual distress (by deeming it to exist: see above fn.26).45 See below, Part III.

It should now become visible that the crux of the matter really lies in the status granted to two particular types of loss: financial loss and mental distress. It is a trite observation that the law of negligence, which is the closest approximation the common law has to a general principle of liability for harm caused by fault, struggles with these two types of harms in a way it does with no other. Although exceptions exist, in both cases its basic stance is to deny recovery when the harm stands alone, i.e. does not flow from a prior injury. The above analysis allows us to explain very simply why. It is not that damage to the pocket or to the mind are not important enough compared to other types of harm. Quite the opposite: they are too important. All injuries – to property, to reputation, to the body, to privacy, etc., even to life itself – boil down in the final analysis to damnum (financial loss) and distress. But their status is to be secondary harms, filtered through the violation of primary rights. As the law stands, if we turn them into primary harms, we start counting them on two different levels, tearing down the logic of the system. The law having developed the way it has, damnum and distress should never be recovered for directly, but always indirectly as one grants redress for primary harms.

A further alternative. Of course, we could if we wanted turn them into primary harms standing level with such other harms as physical injury, damage to property, loss of reputation, breach of privacy, loss of liberty, etc. Going down that road would mean, using the reverse perspective of rights, recognising wealth and emotional wellbeing as protected interests level with physical integrity, land, chattels, reputation, privacy, liberty and the like: primary rights.46 If we did this then indeed we could uncouple the unipolar model from its hidden consequentialism. One major implication of this would be that a claimant who is e.g. distressed by a defamatory statement, or incurs expenses because their car was smashed, would now be regarded as having suffered two distinct injuries and therefore two distinct wrongs: to their reputation and to their feelings; to their chattel and to their wealth, etc. The noxious consequences, to the wallet and to the mind, would no longer be smuggled behind the primary harms. This begs the question of how the injury to the reputation or to the car would be valued apart from its consequences: this would have to be in a way which does not take them into consideration. Possibly a fixed award? This is an intriguing question but it takes us too far from what everyone currently accepts to be worth pursuing here. As the law stands, it has decided – to my mind not without good reasons – to grant a different status to these two types of harm, as being those to which all the others are reducible.

46 This takes one step further the logic applied to consequential economic loss in the South African case of Media 24: see text above, at fn.33.

III. A Survey of the Modern Law

1. An Overview

The first two parts articulated the existence of two ways of understanding the relationship between wrong and loss in tort law, and highlighted the incompatibility of their rationales hence the importance not to combine them. We now need to say something about English law as it stands. While a detailed survey lies beyond the scope of this study, some brief remarks can profitably be made.

Subject to what will be said shortly about the difficulty of pinning down the logic of the law, it seems beyond dispute that the bipolar model has been and remains ultra-dominant. By and large, English law is not interested in compensating wrongs; it compensates losses which are understood to be, by construction, distinct from them. This was summarised succinctly by Dodderidge J in the 17th century when he wrote “if there be damnum absque iniuria [i.e. loss without wrong], or iniuria absque damno [i.e. wrong without loss], no action lieth, but where there is injury, injuria and damnum, and so both of them do run together, there an action well lyeth”.47 Three hundred years later the situation has not varied an iota: in Tettenborn’s words, “a plaintiff must prove not only wrong but loss … which … implies that damnum must be something different from iniuria”.48 The physical injury, damage to property, injury to a personality right, etc., are transparent; they are mere pegs rendering wrongful (hence compensable) the concrete detriments which flow from it. This is trite but it must be kept in mind to understand why the introduction of a contrary logic is illegitimate, all the more so because some might be tempted to attempt a formal reconciliation between the two by including as losses, on the dominant model, detriments which are not concrete harms flowing from the wrong but rather the wrong itself regarded as an abstract injury.49 The very existence of nominal damages should be able to demonstrate the existence of a wedge between wrong and loss: if there exists such a thing as nominal damages (which is beyond doubt) and these are meant to signal the violation of a right in the absence of loss (which is also clear), then by

47 Cable v Rogers (1625) 3 Bulst. 311 at 311; 81 E.R. 259 at 259 (KB).48 A. Tettenborn, “What is a Loss?” in J. Neyers, E. Chamberlain and S. Pitel (eds), Emerging Issues in Tort Law (Oxford: Hart Publishing, 2007), 441 at p.443.49 To continue with the example of breach of privacy, this would mean saying that the wrong of breach of privacy leads to losses which are “distress, pecuniary loss and loss of privacy”. But this is absurd in that it treats the injury to privacy both as the wrong and as a consequence of the wrong, which is ontologically impossible. Following what was explained above, it would also amount to counting the same harm twice.

construction there must be such a thing as wrong without loss.50 This is the dominant approach.

The alternative model, regarding the loss as the wrong itself, can be seen to surface in situations where there is no loss in the above sense of concrete detriments flowing from the right-violation. This is of course entirely unsurprising, for these are the very situations where the dominant model breaks down (by which is meant that its logical implications – no action or mere nominal damages – appear to courts to be the wrong outcome). In situations such as those that formed the factual background to The Mediana,51 Rose v Ford,52 Rees v Darlington53 or Weller,54 the claimant could not – or at the very least did not – point to any financial loss or distress caused by the wrong. This forced the law to switch over to the abstract definition of loss-as-wrong in order to grant substantial damages to the claimant:55 for their “loss of use” (i.e. the violation of their right to exclusive possession), “loss of expectation of life” (i.e. diminution of their “quantity” of life), “loss of autonomy” or “loss of privacy”.56 What courts almost invariably failed to do in these cases was to explain what should happens to the concrete forms of loss after they shunted to this new abstract model.

2. Difficulties

While the big picture of the law is reasonably simple, its details are not simply complex but remarkably hard to establish with precision. A fined-tuned analysis, trying to understand exactly what sort of harms, losses or detriments are being compensated by the law (or otherwise redressed through money damages), under each cause of action, runs into many difficulties which can make it

50 There is admittedly a level of ambiguity in the terminology. Courts move seamlessly from saying that torts actionable “by themselves” (per se) are actionable “without loss” simpliciter, to saying that they are actionable “without special loss”. The latter, contrary to the former, hints at the possibility that there might be such a thing as loss which is not “special”, whatever that might consist in. 51 Mediana (Owners of Steamship) v Comet (Owners of Lightship) [1900] A.C. 113.52 [1936] 1 K.B. 90; [1937] 3 All E.R. 359.53 Rees v Darlington Memorial Hospital N.H.S. Trust [2003] UKHL 52, [2004] 1 A.C. 309.54 Weller [2014] EMLR 24.55 An alternative would have been to grant “vindicatory” damages: see text below, at fn.89. 56 These examples are chosen because of the existence of unambiguous authority. The position is less clear when it comes for instance to loss of liberty, the textbook example of the claimant who was not aware of their being imprisoned not having been properly tested in court: see J. Varuhas, “The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages” (2014) 34 OJLS 253 at 276.

extremely difficult, if not downright impossible, to ascertain the relevant facts. Five of them are especially worth mentioning here:

(i) Perhaps the main difficulty lies in the well-known tendency of courts to grant lump monetary awards without itemising them or explaining with precision what sort of detriments they are meant to remedy, a tendency made historically worse by the use of juries in civil cases. While reasonings of the sort found in Stephen v Myers,57 where the judge instructed the jury to award to the plaintiff “such damages as you think the nature of the case requires” thankfully belong to a by-gone era, a high degree of uncertainty remains, fostered by such ill-defined and unstable labels as “general” and “special” damages: terms which might give an impression of order and accountability, but in reality hide more than they explain.

(ii) Besides, to the extent that courts do in fact unpack what they are doing, their dicta can be obfuscating or plainly inconsistent with one another. One example among many is the issue of damages for false imprisonment. Does the successful claimant get compensated for the loss of liberty (abstract loss; unipolar model) or for the distress (bipolar model, ignoring for the sake of simplicity any pecuniary loss) or both (illegitimate conflation of the two models)? The dicta of the court simply cannot be reconciled.58 Such uncertainties plague the law.

(iii) Generally, the issue of damages for mental distress is treated by courts in a sloppy way: confusing labels; awards that are far from systematic, being granted in some cases but not others which would appear to be materially identical; and all too often the issue of distress only surfaces in the context of aggravated damages, which it is now well accepted compensate for the extra distress caused by the defendant’s high-handed conduct.59 The last point, in particular, creates enormous confusion. Stabilising and systematising awards for “loss of happiness” should be one of the courts’ top priorities in this area.

(iv) Furthermore, some labels might straddle the line between abstract and concrete losses, making it very difficult to analyse them through the lens of our two models. A case in point is the phrase “loss of dignity” which appears, in particular, in breach of privacy cases: does it refer to an abstract loss (the violation of the claimant’s right to dignity per se) or a concrete one (their suffering indignity in the lay sense of the term: a form of mental distress) or both? All three meanings can be seen to surface in the case-law.60

57 (1830) 4 C. & P. 349, 172 E.R. 735 (assault).58 McGregor et alii, McGregor on Damages (2014), at §§40–012 - 40–013 and cases cited; Varuhas, “The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages” (2014) 34 OJLS 253 at 276.59 E.g. A. Beever, “The Structure of Aggravated and Exemplary Damages” (2003) 23 OJLS 87 at 89; J. Murphy, “The Nature and Domain of Aggravated Damages” (2010) 69 CLJ 353 at 358.60 Descheemaeker, “The Harms of Privacy”, 7 Journal of Media Law (2015), forthcoming, s I.5.

(v) Linked to the use of obfuscating terms such as “general” and “special” damages is the tendency of the law to presume, sometimes irrebuttably, some of these. The law of defamation is particularly rife with such presumptions. Thus it is well-established that the claimant is entitled to substantial, not just nominal, damages even if they cannot point to any distress or pecuniary loss flowing from the defamatory statement.61 But it is impossible to disentangle three possible interpretations: that this compensates for the abstract loss of reputation; that it redresses that injury albeit not through the medium of compensation; or that it compensates for a concrete loss, although one that is irrebuttably presumed.62

A good illustration of some of these difficulties coming together is the case of Ashby v White, not uncommonly regarded as an early example of “substitutive” or “vindicatory” damages. The claimant in that case had been wrongfully denied the right to vote. He did not suffer any economic loss as a result and no distress was alleged. He nonetheless recovered substantial damages, on the basis that, in Holt CJ’s famous words, “every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindred of his right”.63

It is hard to see what the logic of this statement is. There are two things the Chief Justice could have said pursuant to our two models. First, he could have followed the bipolar model and compensated, not the wrong itself (i.e. the violation of the claimant’s right to vote) but the ensuing distress, which almost certainly could have been pointed to in the case – or even, if not, on the basis that an ordinary claimant would have been upset.64 This is how an almost identical Scottish case was decided in the 19th

century.65 Alternatively he could have switched over to the unipolar model, and held that “every injury is a damage”. But he did not, conflating instead the two logics by holding that there was a “damage” – in the Roman sense of damnum? or of a concrete detriment? – even though it was irrebuttably “imported” (i.e.

61 A. Mullis and R. Parkes (eds), Gatley on Libel and Slander (12th edn, London: Sweet & Maxwell, 2013), at §9.5.62 The idea of “vindicating” the claimant’s reputation through the money award appears frequently in that context, although it is not altogether clear what this means. It does not seem to be vindication in the usual sense of the term but something like clearing the claimant’s name by sending a strong judicial signal that the incrimination was false (Mullis and Parkes (eds), Gatley on Libel and Slander (2013), at §9.1), which is all the more puzzling because proof of falsity is not, in English law, part of the cause of action in defamation.63 Ashby v White (1703) 2 Ld Raym. 938 at 955; 92 E.R. 126 at 137 (emphasis added).64 See above fn.26.65 Hughes v Gordon (1819) I Bligh. 287 at 295; 4 E.R. 109 at 113 (“in solatium of the detriment arising from the loss of the pursuer’s vote and right of electing”).

presumed). Holt CJ maintained an unstable equilibrium between two incompatible logics, straddling – rhetorically – their divide. It is not to the credit of our law that, three hundred years later, it has yet to make up its mind in a clear way about these foundational issues.

IV. Some Consequences of the Choice

One question that has been left all but untouched up to this point is that of the choice between the two models. This neutrality is deliberate: while my sympathy for the “unorthodox”, unipolar approach is bound to surface, this paper does not seek to arbitrate between the two models. Its aim is simply to identify their existence and reliance on incompatible logics. It is first an attempt to seek understanding of the law’s workings, and second a plea for consistency: we cannot continue to waver the way we have, sometimes granting substantial damages for wrongs apart from any consequences and sometimes not, sometimes compensating ordinary distress separately from the injury to the main right and sometimes not, etc. In this final section we look at consequences the choice between the models has on a number of important issues in the law of torts: the position of juridical persons and of non-sentient beings, the meaning of loss in tort law, and the place of nominal and vindicatory damages. Which stance we believe the law ought to take on these questions provides us, in return, with a strong indication as to the analytical framework it should follow.

1. Juridical Persons

The first issue concerns the position of juridical persons. Both in the Romanist tradition and in the common law, the rules of tort matured long before there existed anything resembling our modern non-natural persons, variously described as “juridical”, “juristic”, “artificial” or “fictitious”: by and large only human beings (though not necessarily all of them) had rights and duties. Today, we are happy – or at least say we are – to recognise such entities as corporations, associations, charities, central and local government authorities, etc., as persons provided certain criteria are met; and for a tortious action to involve at least one non-natural person as a party has become entirely commonplace. In turn, this has forced us to redefine persons-at-law as holders of rights and duties rather than beings of flesh and blood.

Yet signs of the law’s doubts can constantly be seen to surface as to whether this is quite right, in other words, whether juridical persons really are persons like any other; and it is not difficult to see the above tension between the two models of tort as at least one of the reasons for this disquiet. While few would doubt that juridical persons are capable of holding proprietary rights, in the narrower sense of rights residing in things which can be

traded, the question whether they are endowed with rights residing in such non-tradeables as reputation, privacy, autonomy and the like is much more disputed. In other words, it is accepted that they have a patrimony (a “having”) but they may or may not have a personality (a “being”). For some of these rights that we bring under the umbrella of personality rights, this would seem to be a definitional impossibility: for instance, bodily integrity. On the other hand there is nothing logically impossible about recognising such rights as, in particular, reputation and privacy for the benefit of non-natural persons.

As a matter of fact profound hesitancy can be observed across the common-law world, both de lege lata and de lege ferenda, as to the status of non-natural persons – or perhaps different categories of juridical persons – in this respect. A principal argument being pressed into service against recognising the above rights is the fact that juridical persons are incapable of experiencing distress:66 as Lord Coke already put it in Sutton’s Hospital, “they have no souls”.67 Whether explicitly or implicitly, the argument grounds these rights in the protection of emotional wellbeing: we grant personality rights to natural persons because they will – at least ordinarily – be distressed if we violate their reputation, privacy, bodily integrity, liberty, autonomy, etc. The right is a means to a further end.

This form of thinking can immediately be seen to be rooted in the bipolar model of tort (i.e. what matters is the mind and the pocket), as indeed the counter-argument typically made in response, namely, that whereas such entities cannot be wounded in their “soul” they can still be affected in their wallet. Again, what this looks to is the possible harmful consequences of the right-violation. But the patrimony defence of personality rights is weak for, if the principal aim (as opposed to an incidental effect) of the right is to protect the company or local authority against financial loss, then defamation or breach of privacy are not the right actions to use, and their being utilised for that purpose is an abuse of the law. What they should do instead is sue under causes of action geared at the protection of patrimonial rights, such as negligence or malicious falsehood. Following the bipolar model, it is very difficult to see how non-natural persons could hold personality rights.

By contrast, on the unipolar model it is evident – because tautological – that juridical persons can suffer a genuine loss (harm, detriment) if a right of theirs is being invaded. The only question for the law becomes whether they are capable in principle of holding any given right (which seems undeniable at least for 66 See (for privacy) Descheemaeker, “The Harms of Privacy”, 7 Journal of Media Law (2015), forthcoming, Part III.1 and (for reputation) J. Oster, “The Criticism of Trading Corporations and their Right to Sue for Defamation” (2011) 2 JETL 255 at 275ff.67 The Case of Sutton’s Hospital (1612) 10 Coke Reports 23a at 32b; 77 E.R. 960 at 973.

reputation and privacy) and, if so, whether it is appropriate to grant it to them. Given that non-natural persons evidently have an interest in the way others think of them, or in controlling the flow of information about themselves, the prima facie answer would seem to be yes. There could still be reasons not to grant it despite its being intelligible and desirable for them to have it, but at the very least the onus would shift to those who want to deny it to provide reasons for this discrimination. The most likely argument would be that such rights are grounded in dignity, in the modern sense of common humanity, and therefore reserved for natural persons. While this argument is valid, it would seem to exclude most, if not all, rights typically described as “rights of personality”. In so doing it gives away the fact that people who think along these lines do not take very seriously what it means to be a person-at-law, for it is a curious person who is not recognised as endowed with a personality protected by the law. The link is therefore very strong between the choice of analytical model on the one hand and the legal position of juridical persons on the other.68

2. Non-sentient Beings

The above reasoning can be applied almost identically to the question whether natural persons who are unaffected in their feelings can recover when they are exposed to the breach of one of their non-patrimonial rights. Restricting for the sake of simplicity the question to situations where no financial harm is claimed, can a person in a permanent coma, or a child who does not care, or someone who dies before they became aware that they had been wronged, recover if e.g. their privacy has been breached? Should the Weller twins,69 the comatose singer in Fan Club Two70 or the hypothetical claimant in Gulati71 succeed? The answer is very directly linked, for the same reasons as above, to the choice of model we make.72

68 It is not however mechanical. Besides the patrimony defence sketched out above, one could think of arguing that juridical persons do in fact have feelings. This is not as evidently absurd as might first appear: if they are held capable – through the ordinary rules of attribution – of signing a contract, willing an act, being in good or bad faith, and committing torts and crimes personally, it is not entirely evident why they cannot equally be attributed emotions. But this would seem to be a novel idea. 69 See text above, at fn.41. 70 The example of the celebrity actor lying on a hospital bed in a coma as zealot fans sneak into his room is borrowed from P. Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Irish Jurist (new series) 1 at 5. 71 Gulati v MGN Ltd [2015] EWHC 1482 (Ch), unreported, at [136]: “Suppose a case of persistent and serious, but covert, invasions over a period of time against two individuals. One dies before discovery of the wrong …”.72 However, as above, there are possible complications: for instance the law could still compensate such claimants on a bipolar model by deeming them to be distressed (see above fn.26).

3. The Meaning of Loss

We turn to finish to two transversal (and intertwined) issues: the characterisation of loss – in the sense of the sort of detriments tort law seeks to compensate – and the role of claimant-focused but non-compensatory monetary awards, namely, nominal and so-called “vindicatory” damages. Both are also directly affected by our choice of model.

The first point, of considerable importance, follows logically from what has been said already. Despite the complexity of the question, it should not be overly controversial to say that there are three paradigmatic understandings in English law of what loss means. The narrowest is that of damnum in the Roman sense of economic loss, in other words, the situation of being out-of-pocket. While no-one today would probably want to defend the view that loss is restricted as a matter of principle to financial loss, it is striking how often this form of thinking does in fact resurface in the law: the idea that loss which is not directly valuable in money is not “real” or “proper” loss dies hard.73 The second meaning is that of concrete detriments, what Robert Stevens calls “being factually worse off”.74 This includes, besides damnum, the various non-patrimonial losses described in Part I as boiling down to mental distress,75 but it falls short of describing as losses non-concrete detriments such as the situation of a an owner whose land was trespassed upon in their absence but not damaged; of the livery man whose horse was taken out for a ride without permission;76 or of the person whose personal health details were wrongfully posted online but does not mind in the least. This second meaning is evidently the dominant understanding that courts and scholars adhere to, whether explicitly or not.

The third meaning of loss is that of the violation of a right (its “diminution”): what is sometimes called a “normative”, “abstract” or “legal” loss.77 (“Legal” is probably the best term, as it illustrates the switch of perspective from the claimant’s factual state of affairs to their legal position.) On that understanding, the claimants in our 73 One example of this line of thinking among many others: “Mental distress is a harm, but to say that it is a ‘loss’ courts the danger of its being understood as a compensable pecuniary detriment; and the fact that it is not then begins to suggest that it is not the proper subject of any award at all”: Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Irish Jurist (new series) 1 at 30.74 Stevens, Torts and Rights (2007) at pp.59, 78.75 See text above, at n.10. 76 As per Lord Shaw’s celebrated example in Watson, Laidlaw & Co Ltd v Pott, Cassels and Williamson 1914 S.C. (H.L.) 18 at 31; (1914) 1 S.L.T. 130 at 139; cf K. Barker, “‘Damages Without Loss’: Can Hohfeld Help?” (2014) 34 OJLS 631 at 631ff; M. McInnes, “Gain, Loss and the User Principle” (2006) 14 RLR 76 at 82.77 This was described by Lord Nicholls and Robert Stevens as a “strained and artificial” meaning: Stevens, Torts and Rights (2007), at p.78, citing Attorney General v Blake [2000] UKHL 45; [2001] 1 A.C. 268 at 279. This evidences the dominance of the narrower model in English law.

three scenarios above have all suffered a loss, their right having been infringed.78 How this third model relates to the second one is not entirely straightforward because, while it is certainly correct to say that it is wider (in the sense that it encompasses all the detriments characterised as losses on the previous model yet goes further), there are two different ways in which this conclusion can be reached – corresponding to the extent to which damnum and distress are uncoupled from the primary rights.79 On one view, they are secondary harms but are indirectly counted when valuating the injury to the primary right – bodily integrity, property, reputation, privacy, liberty, etc. – thereby obliquely reintroducing them in the abstract model.80 The alternative view would be to regard wealth and emotional wellbeing as primary interests standing alongside the above.81 On both approaches, the legal model of loss includes and reaches beyond the factual one: it is a third concentric circle around the first two.

It is easy to see how the analytical frameworks explored in this paper are linked to two different understandings of loss. The bipolar model is wedded to the “factual worse-offness” definition, for it looks to the concrete detriments suffered by the claimant, which it sees as ultimately reducible to an injury either to their wallet or to their mind. It is therefore entirely unsurprising that the two should have risen to prominence side by side. The unipolar model, by contrast, is tied to the third, legal definition of loss as the diminution of a right: this is in fact how loss was defined on that model, as the flipside of the right-injury. Again, it is not the purpose of this paper to make a choice. Both (indeed all three) understandings of loss are entirely meaningful. What should however be easy to accept is that the law must make a choice. We cannot continue to meander, whether consciously or not, between these various definitions depending on the type of factual circumstances we are facing. While what the law means by loss naturally has to be worked out according to the innumerable facts patterns it may encounter, it cannot in reason depend on them.

4. Vindication and Compensation

This leads us straight to our final point, which concerns the different types of claimant-focused monetary awards in tort law and how they relate to one another.82 There exists three types of such 78 Note that legal injuries are not restricted to abstract losses: the claimants in our earlier examples, whose car was smashed and who lost their sense of taste and smell – two concrete forms of injury – have, of course, also suffered a loss/invasion of their right (to property and to bodily integrity). 79 See text above, at fn.44-46.80 See text above, at fn.44-45.81 See text above, at fn.46.82 Defendant-focused awards raise different issues and are not considered here. However it is worth pointing out that accepting a wider definition of loss would likely have a rippling effect on punitive, restitutionary or disgorgement damages

awards:83 compensatory and nominal damages have existed for a very long time, and were joined more recently by a type of awards described as “vindicatory”, which is at least prima facie distinct from the other two even though it has been suggested that nominal damages were a subtype of vindicatory damages.84

Compensatory damages clearly being the heart of claimant-focused awards in tort, the position and role of the other two categories are going to depend on how far the first is reckoned to extend. In turn, given that it is apodictic that compensation is for loss and for loss only, this is going to depend on how widely or narrowly loss is construed. This is not difficult but it is crucial to see it. Let us illustrate the point with the case of the twin Weller infants,85 who were photographed in breach of their privacy but were unaware of it – not only at the time it happened but all the way to the day of judgment. On the (dominant) loss as factual worse-offness model, John Paul and Bowie Weller have not suffered any loss. From this a threefold alternative follows. First, the law could deny them any action, as in the case of Ulpian’s slave-boy,86 on the basis that they have no suitable grievance.87 Second, it could grant nominal damages marking the fact that an infringement occurred but no “real” loss was suffered:88 this has been the traditional response of the common law. Third, it could decide that it wants to grant substantial damages anyway but, given that there is no loss, by definition the award cannot be described as compensatory. Recently the idea of “vindicatory damages” has been pressed into service in a clear attempt to step into the breach created by a desire to redress with “real” damages more situations where a wrong – or perhaps a specific type of wrong, although the exact nature of the class remains to be determined – has been suffered yet, on the usual understanding, no loss caused. It has been rightly remarked that the existence of this separate class is puzzling given that all rights deserve vindication (what is a right that does not get vindicated when it is violated?) but this is

insofar as they are all designed to achieve the same practical (perhaps prophylactic) result, namely, to grant substantial damages in tort in the absence of loss in the traditional sense of the term – or at least regardless of it.83 This accepts that aggravated damages are compensatory in nature (see above fn.59) and so-called “contemptuous” damages a type of nominal damages. 84 E.g. N. Witzleb and R. Carroll, “The Role of Vindication in Tort Damages” (2009) 17 Tort Law Review 16 at 21-22; Varuhas, “The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages” (2014) 34 OJLS 253 at 290. 85 See text above, at fn.41.86 See text above, at fn.13.87 This does not entail that the doer of the act will escape consequences altogether: there could still be, for instance, a criminal response to the wrongdoing.88 I borrow the word “real” from The Mediana [1900] A.C. 113 at 116: “‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right”.

normally done indirectly: through compensatory (or nominal) damages.89

This controversy can be illuminated by looking at it through the lens of the conflict between our two frameworks. On the bipolar model, whereas the existence of nominal damages does make sense,90 the existence of a separate class of vindicatory damages is very hard to account for. Why do some right-violations sans loss deserve substantial awards and others not? It seems to me that the rise of this class of substantial awards described as vindicatory gives away the fact that the law really is moving towards a broader understanding of loss, akin to the third, “legal”, sense sketched out above, yet is either unable or unwilling to recognise it. It shows that, whatever it might say, it does consider that the claimant has suffered a genuine detriment and that this genuine detriment or harm deserves genuine, i.e. substantial, damages. In other words it is a real loss.

On the unipolar model, by contrast, nominal damages are unintelligible: by construction a right-violation is a genuine loss which deserves genuine, hence more than nominal, damages. As to vindicatory damages, the broader understanding of loss it is tied to makes them entirely redundant. To illustrate this with the same example as above, the Weller twins have on that view suffered a real loss (because privacy is a real “good”: this, indeed, is why the law protects it in the first place). Therefore they can receive real, i.e. substantial, damages which are truly compensatory in nature. This substantial award indirectly achieves vindication of the right, as compensatory damages invariably do. On that view, there is no room (or at least no need) for claimant-focused awards other that compensatory: a person who has been wronged will definitionally have suffered a loss, and the way the law vindicates the right infringed is by granting compensation for its infringement, i.e. its “diminution”. If nothing else, the unipolar model has the appeal of simplicity and neatness.

Conclusion

This article has sought to bring some order to the law of tort by highlighting that English law has been meandering between two incompatible analytical frameworks, corresponding to two ways of articulating the relationship between the wrong and the harm or

89 Witzleb and Carroll, “The Role of Vindication in Tort Damages” (2009) 17 Tort Law Review 16 at 42; cf Ashley v Chief Constable of Sussex Police [2008] UKHL 25; [2008] 1 A.C. 962 at [22]: “there is no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose”.90 The class does however seem to be caught in a tension: has the claimant suffered a genuine detriment or not? To put the same question differently, do they have a proper grievance? Nominal damages appear to want to answer the question in the affirmative and in the negative at one time. Besides, if we accept that they are a type of vindicatory awards, there remains the question why some rights are vindicated directly and others indirectly.

loss. On one (historically arch-dominant) model, it was argued, the wrong is in itself transparent and what the law seeks to compensate is the detriments that flow from it (and are therefore distinct from it). These losses, in turn, are either to the pocket (pecuniary loss) or to the mind (mental distress or loss of happiness). On the other model, making more frequent inroads into the modern law, the harm conflates with the wrong and it is the diminution of the right itself which is now compensated – even though the noxious consequences will factor into the valuation of the injury: for that reason, direct losses should not be compensated as well, lest double recovery should occur. While the results reached will typically be the same, in part because the unipolar model is indirectly consequentialist rather than purely deontic, the choice made between the two models does have a clear and direct bearing on foundational issues in tort law, in particular the legal position of non-natural persons and non-sentient natural ones; also the meaning of loss and, as a consequence, the role (if any) played by the non-compensatory measures of damages known as nominal and vindicatory damages.

This article did not seek to arbitrate between the two models. While I have considerable sympathy for the unipolar framework, I certainly recognise the coherence of the dominant bipolar model. The more modest point being pressed for is that the incompatibility of the two logics must be acknowledged; accordingly any favoured model should be adhered to consistently. The incoherence of meandering between the two systems must be recognised, all the more so given that the law is increasingly tempted to do so, because sometimes it wants something of the effects associated with the unipolar model without adopting it outside of those situations (and not being quite sure either how, even in those situations, it relates to the dominant framework). A choice needs to be made, for nothing causes more unnecessary muddle in the law than clashes of rationality.