Against Normative Damages

1. Introduction

Steven Lewis is an Australian man who, in 2008, was sentenced to 12 months’ imprisonment for smashing a glass into another man’s face, which sentence was to be served in the form of periodic detention (i.e. reporting to prison every weekend and being released during the week). Because he failed to report on the weekend on more than two occasions (indeed, twelve), the Sentence Administration Board of the Australian Capital Territory (ACT) summoned a meeting, at which it cancelled the periodicity of the detention (i.e. made it full-time). Under relevant legislation the Board was not simply empowered, but obligated, to do so. Accordingly, Mr Lewis was arrested and returned to his confinement on a full-time basis.

The reason why Mr Lewis’ case reached the High Court of Australia is because he might never have been made aware of the date of that meeting, at which he had a statutory right to be heard. Although the Board had sent a series of letters, which reached him but he chose not to open, it was held by the trial judge (and not appealed) that there remained a doubt as to whether he was given notice of the hearing, which took place in his absence. Accordingly, it was held that he had been denied procedural fairness and that the Board’s decision was, for this reason, invalid. This, in turn, rendered his subsequent imprisonment (82 days, until he was released on bail) wrongful. The wrongfulness of his imprisonment was not appealed either.

What was the object of the dispute between Mr Lewis and the ACT was the quantum of damages to which he was entitled as a result of having been wrongly imprisoned by officials acting on behalf of the Territory. At first instance,^[1] and on appeal,^[2] it was held that he was entitled to nominal damages only on the basis that, had procedural fairness not been denied to him, the Board (not having a discretion in the matter) would have cancelled the periodic detention in any event. In other words, had he not been wrongfully imprisoned, he would have been rightfully imprisoned: applying the usual counterfactual test of but-for causation, he did not, according to the Supreme Court of the ACT, suffer any loss as a consequence of the wrongful conduct; accordingly he was not entitled to substantial compensatory damages. Because he was not entitled to non-compensatory damages vindicating his right to liberty either (a type of award commonly referred to as ‘vindicatory damages’), all he could receive was nominal damages marking the wrongfulness of his imprisonment, sans loss.

On further appeal to the High Court, counsels for Mr Lewis returned to the attack with a twofold argument. They claimed, on the one hand, such vindicatory damages to mark the wrongfulness of the wrong apart from any loss caused. On this count they lost, like indeed all tort claimants in Australia and England since Lumba.^[3] However they also made a separate argument, which is the focus of this article: namely, that their client, despite not having been caused factual loss by the Territory, should nonetheless receive substantial compensatory damages. In their view, Mr Lewis had lost something at the hands of the Territory: ‘[t]he thing that was lost’, they said, was ‘the right not to be imprisoned’.^[4] This, they argued, was valuable and therefore worthy of (substantial) compensation. That claim, distinct from the claim for (non-compensatory) vindicatory damages—if running in parallel and pursuing a substantially similar remedy, that is, more than nominal (claimant-focused) damages in the absence of factual loss, was also rejected by the High Court of Australia.

This rejection was unanimous and, to my mind, right in terms both of historical orthodoxy and doctrinal principles underpinning the law of damages.^[5] However, because the bulk of the Court’s reasoning was concerned with issues of counterfactual causation and the question of what would have happened to Mr Lewis had he not suffered a wrong, it sidestepped to a large extent the more foundational question of whether loss of liberty (‘the right not to be imprisoned’) is by itself a compensable detriment. By focusing its answer on the fact that he would have lost it anyway, the Court failed to articulate the more general reason why Mr Lewis could not recover: namely, that the ‘loss of a right’ is not a redressible loss apart from its detrimental consequences on the claimant. As such, it should not be compensated any more than it should be ‘vindicated’ by an award of substantial damages. Normative (or abstract) loss, as it is sometimes referred to,^[6] does not sound in compensatory and substantial damages (‘normative damages’ to use a mirroring terminology).

While this normative loss argument, as it was presented to the High Court of Australia, challenged more clearly than ever before an age-old orthodoxy of the Anglo-Commonwealth law of damages—no compensatory damages bar for factual losses—it naturally did not come out of the blue. In an age where private law scholarship has become saturated with the language of rights, the idea that the violation of a right could sound in substantial damages (even substantial compensatory damages) has gained popularity; indeed it has even received—very limited but nonetheless real—judicial recognition (in England, in the context of privacy).^[7] It is therefore important to address in as systematic and principled a way as possible, not just where the doctrine has come from, but also the reasons why such ‘normative damages’ are wrong. This is the primary purpose of this article: stepping back from the specificities of Lewis v. ACT, to argue that there is no place, either historically or doctrinally, for this type of award in English, or more, broadly Anglo-Commonwealth law.^[8]

2. What Are Normative Damages?

A. Compensatory Damages for a Loss that is Itself Normative

The type of award considered, and rejected, in Lewis alongside ‘vindicatory’ damages^[9] has been described as ‘normative damages’.^[10] It is a form of compensatory damages for a loss which is itself normative, in the sense of being construed as the violation of the claimant’s right—in Lewis his right to freedom—as distinct from factual losses, that is, the detrimental consequences of the wrong on the claimant. It is in this sense that they will be understood throughout this paper: normative damages are damages aimed at compensating the claimant for the violation of his right, apart from any consideration of—factual—loss. (To this some would immediately retort that this is not ‘loss’ in any true, meaningful or historical sense of the term. At best it would be, in Lord Nicholls’ words echoed by Professor Stevens, a ‘strained and artificial’ meaning of the term.^[11] Though, to my mind, the counterargument is ultimately correct—that is, a right-infringement can only be construed as a compensable loss by redefining the concepts of loss and compensation as they have traditionally been understood—we have to start from the assumption that a normative loss is, at least prima facie, a detriment capable of being compensated; otherwise, the rejection of normative damages would become question-begging.)

The key distinction here is between normative (abstract) loss, which normative damages purport to compensate, and factual (concrete) losses.^[12] On any reading, factual losses are the real-life detriments flowing from the wrong,^[13] whether these be pecuniary or not:^[14] in Edelman’s terms, they are ‘adverse consequences’ (of the wrong) ‘experienced in the real world’.^[15] The likes of ‘loss of liberty’, ‘loss of reputation’, etc. (i.e. losses defined by reference to the protected interest that is set back) are not, for their part, ‘experienced in the real world’; they only exist in the—abstract or indeed ‘normative’—eyes of the law.^[16] In the above example of false imprisonment, the factual loss(es)^[17] would be on the one hand pecuniary loss, if any, and on the other emotional harm, again if any (humiliation, anger, distress, anxiety, fear, indignity, etc.);^[18] whereas the normative loss would be the loss of liberty considered in itself. In the case of breach of privacy, the normative loss would be the loss of privacy, whereas the factual losses would be, again, the loss of money and of happiness caused by the wrong. Indeed, this is what factual losses always are when reduced to the two categories representing the summa divisio of compensatory damages: pecuniary loss, that is, financial harm, and non-pecuniary loss, that is, emotional harm. Although the term was not used in Lewis itself, the phrase ‘normative damages’ is simply a commodious shorthand to describe compensatory damages for normative loss (like ‘non-pecuniary damages’ would be used to refer to compensatory damages for non-pecuniary loss).

B. Normative and Vindicatory Damages Distinguished

It is important clearly to distinguish—indeed more clearly than has sometimes been the case—normative damages from vindicatory damages. While ‘vindicatory damages’ do not have a single agreed-upon definition, the one thing that everyone would (or should) accept is that they are not compensatory (otherwise their raison d’être as a separate category of damages would immediately disappear).^[19] They are substantial damages which are not compensatory but, contrary to exemplary or gain-based damages, are not defendant-focused either. They are claimant-focused—concerned with his right—but not compensatory. This only leaves some idea of recognition of the right infringed: like nominal damages, only substantial (the underlying idea being that substantial damages would be more ‘effective’ to recognize the wrongness of the injury).^[20] This idea of marking, hence expressing, the ‘wrongness’ of the wrong is the core of the category of vindicatory damages, as scholars have understood it.

In that sense, they are analytically distinct from normative damages, the latter being, again, understood as compensatory (hence for a loss) while the former would be non-compensatory (for a ‘non-loss’, as it were). At the same time, it is undeniable that they fight over the same territory, hence an overlap which can sometimes seep into doctrinal discourse. Observably the two doctrines fulfil the same aim, namely, award a substantial quantum of (claimant- as opposed to defendant-focused) damages apart from—factual—loss. Lewis is indeed a perfect illustration of this, both doctrines having been pleaded by counsels as alternatives (with compensatory damages being the principal argument and vindicatory damages, as always,^[21] the subsidiary one), implicitly conceding that they could not be awarded cumulatively. This, in turn, can only be because they are in a sense doing the same work.^[22] The point has interesting implications for the relationship between the two doctrines, but these will not be examined in this article, which focuses on the compensatory aspect of the claim for substantial (claimant-focused) damages apart from factual loss— ‘normative damages’, to the exclusion of ‘vindicatory’ ones.

3. A (Very) Modern Heterodoxy

Remarkably, counsels for Mr Lewis argued that they were relying on an age-old tradition of the common law granting such (substantial and compensatory) damages absent loss.^[23] What this part aims to show is that this is as far from the truth as it could be. In reality, none of the authorities relied on in support of this view bear out the proposition they are made to stand for; conversely, their argument runs into foundational principles of private law. However, because the idea has in fact made some headway (albeit very recent and limited) into case law, it is important to examine this alleged tradition carefully. Far from being an ancient doctrine of Anglo-American law, normative damages turn out to have arisen quite recently at the crossroads of, on the one hand, North American scholarship concerned with rights and, on the other, problematic fact patterns courts were faced with, in particular in an English context.

A. A Non-Existent Tradition

The submission that there exists widespread authority to the effect that right violations can sound in substantial compensatory damages, independently of ensuing factual loss, is simply wrong. When examined more closely, none of the alleged authorities turns out to provide any basis for the proposition; on the other hand, the existence of such a doctrine would contradict some of the best-established principles of the law of damages.

(i) Misreading of case law

Starting with the first half of the argument, counsels for Mr Lewis relied primarily (apart from cases dealing with ‘user damages’, which also appear to give the claimant substantial damages in the absence of factual loss) on the trilogy of Ashby v. White, Plenty v. Dillon and The Mediana.^[24] The controversy surrounding ‘reasonable fee damages’ will not be reopened here because, regardless of the normative underpinning that might be favoured to explain them (compensatory, restitutionary or something else), it is not doubted that, as a matter of positive law, these cases are restricted to situations where, in Lord Reed’s words, the defendant took ‘something for nothing, for which the owner was entitled to require payment’.^[25] It follows that, if these awards are compensatory, then (i) they compensate for a pecuniary loss, albeit one construed differently (the ‘payment’ the claimant was ‘entitled to require’, even if he would not have); and (ii) they only apply to one sub-set of situations, that of rights which can be bargained away. But liberty is not a commodity and it cannot be traded on the market; accordingly user damages can neither support Mr Lewis’ claim—his liberty was not ‘used’ without permission—nor provide any general basis for compensating non-factual losses.

Ashby v. White.

Leaving this line of cases aside, and starting with the earliest case within the above trilogy, Ashby v. White^[26] was used as an authority to the effect that substantial damages could be awarded for a mere right infringement. Although Mr Lewis’ counsels did not seek to articulate the legal rule for which the case was meant to stand,^[27] they relied on it in two different ways.

First, they argued that the claimant (ultimately) received substantial damages even though he had suffered ‘no [factual] loss’ because ‘[his] preferred candidate was elected’, which (presumably) was meant to suggest that compensation could avail even if no loss of this nature was suffered.^[28] This argument, however, reflects a serious misunderstanding of the notion of factual loss. Indeed, it is not even clear in what sense the defeat of one’s chosen candidate could be construed as a ‘loss’ for the (non-)voter, except perhaps as the frustration of his camp having suffered a political defeat on the night (but then, save in the most extraordinary of circumstances, this would not have been caused by the wrongful refusal to let him vote, not any more than by any individual abstention). On the other hand, it is evident that an emotional harm was suffered by the claimant as the result of having been denied the right to vote: annoyance, anger, even rage; humiliation too (especially if the denial was committed in a public or belittling way). Having one’s rights trampled upon is, at the very least in ordinary circumstances, a distressing experience. Indeed, the very fact that Mr Ashby went all the way to the House of Lords over this matter is proof enough that he cared about what had happened to him. He did suffer substantial (non-pecuniary) loss; and this is why he recovered substantial (compensatory) damages.

Secondly, counsels relied on Holt CJ’s extremely famous statement to the effect that ‘an injury imports a damage, when a man is thereby hindred of his right’—^[29] a proposition which we might want to render in contemporary English as ‘a wrong entails a loss, when a person’s right is violated by it’. This, indeed, is sometimes read as signifying that the right violation (injury, wrong) amounts to a loss (damage); yet, again, this conflates two things which Holt CJ’s very words had kept separate: if a wrong ‘imports’ a loss, the natural implication is that, whatever the loss is, it is distinct from the wrong (indeed that it flows from it, the way factual losses do). Holt CJ was clearly referring, in that statement, to the way in which the law satisfies itself that the necessary element of damage or loss, for an action on the case to succeed, can be held to be present, arguing that it could be inferred from the wrong itself. The wrong (‘injury’) is not the loss (‘damage’); it is the basis on which the existence of the loss can be extrapolated.

That this is, not just the natural, but the only plausible reading of his words becomes unmistakable in context. Addressing the objection that an action on the case cannot be maintained without damage or loss, yet none had been alleged by the claimant on the facts, Holt CJ answered:

but surely 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.

The modern reader, reading the sentence up to ‘not merely pecuniary’, would almost certainly finish it differently: ‘for a damage [loss] can also be non-pecuniary, when someone has his right violated’. In other words, because Mr Ashby was denied the exercise of his right—the ‘right of sending representatives to Parliament’ (which ‘the commons of England are so fond of’) –^[30] he suffered a (factual) loss, even though it was not a pecuniary one. This is, in fact, exactly the way in which a Scottish court answered an almost similar case a hundred years later, describing the award of substantial non-pecuniary damages as a ‘solatium’ (comfort) for the deprivation of the right.^[31]

That this is what Holt CJ also meant is made transparent by the analogies he went on to provide for the award he would have been prepared to make: ‘an action for slanderous words, though a man does not lose a penny by reason of the speaking them’, or when ‘a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon’:^[32] two very clear examples, in modern terms, of emotional harm. Mr Ashby would have been—indeed he was—angered, humiliated, frustrated, scandalized, etc., that his civic right had been trampled on. The specification Holt CJ made in this passage was simply that this (non-pecuniary) loss could be inferred (‘imported’) from the violation of the right without having to be pleaded specifically. Ashby was always a case of pecuniary compensation for non-pecuniary harm.^[33]

Plenty v. Dillon.

Heavy reliance was also placed on the Australian case of Plenty v. Dillon,^[34] on the basis that the High Court had adjudged the claimant to be ‘entitled to some damages in vindication of his right to exclude the defendants from his farm’.^[35] Counsels for Mr Lewis read this as meaning that, because the claimant had suffered a trespass (to land), albeit one that had caused ‘no damage to the land’,^[36] the law had held him to be entitled to substantial compensatory damages for his normative loss (i.e. the deprivation of his right to exclude others).^[37]

But, again, this is a complete misreading of a judgement which was a straightforward application of well-established compensatory principles. The trial judge had rejected the claim on the basis that ‘even if a trespass had occurred, “it was of such a trifling nature as not to [s]ound in damages”’.^[38] This was plainly wrong: the age-old orthodoxy is that, trespass being actionable per se, the claimant is always entitled to at least nominal damages. This is what the High Court of Australia had to reassert: ‘[h]owever, once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages’—of nominal damages, of course (absent loss).

Why, then, did Mr Plenty get substantial damages? For the very simple reason that he had suffered—factual—loss: as the HCA went on to say, ‘we would unhesitatingly reject the suggestion that this trespass was of a trifling nature’.^[39] Indeed, he had suffered considerable loss at the spiteful and high-handed conduct of constables Dillon and Will, whose conduct was calculated to show contempt and make it clear that they could do as they pleased—no matter whether he liked it or not, indeed better if he did not. As Edelman J pointed out (a fact that was not mentioned in the High Court judgment), Mr Plenty suffered not just ‘distress and humiliation’ but also a ‘depressive illness’; the circumstances were also such as to merit an award of aggravated damages.^[40] Not that these additional points were necessary to the success of his claim; but they make it abundantly clear that Mr Plenty received substantial compensatory damages because he had suffered substantial (non-pecuniary) loss. It is only if one conflates loss with ‘damage to land’, as the trial judge did, that the judgement in Plenty comes out as anything but a straightforward application of long-standing principles.^[41] Certainly, it should not be read as authority for the availability of normative damages any more than reference to vindication later in the same paragraph should be relied on as an authority for the availability of ‘vindicatory damages’, in the sense expounded above.^[42]

The Mediana.

Finally, but less emphatically, The Mediana was appealed to.^[43] The award in The Mediana has been subjected to various interpretations: that it would be compensatory for a pecuniary loss, albeit one that was standardized by neutralizing the fact that this particular claimant happened to have a spare lightship;^[44] that it would be compensatory for a non-pecuniary loss;^[45] or indeed that it would be gain-based. There is no need to go into the underlying dispute to be satisfied that no novel principle is necessary to explain the case. (Indeed, it would be extraordinary if the very court which gave us the leading modern judgment regarding nominal damages—that is, no ‘real damage’, no substantial [compensatory] damages—would have gone on to award substantial damages for the ‘infraction of a legal right’ considered in itself.^[46]The Mediana stands as a leading authority for the exact opposite proposition.)

(ii) Incompatibility with well-established doctrines

As was just seen, there is no line of authority in English or Anglo-Commonwealth law that can be mustered to support the idea that substantial damages are (generally, or indeed ever) available to compensate the normative loss inherent in a right deprivation. In turn, such absence of evidence can be taken as evidence of absence: for, if such a foundational doctrine existed, it would naturally have been brought to the fore a long time ago. However, a separate argument can be made for its inexistence, namely, that a doctrine of this sort would directly contradict other—clearly and anciently established—principles of the law.

Nominal damages and the doctrine of iniuria sine damno.

First, the existence of normative damages is incompatible with two of the best-established doctrines of the common law, namely, the existence of nominal damages and the doctrine of iniuria sine damno. It is true that, because damages generally remained much of a black box for as long as juries sat (and indeed until modern doctrinal scholarship started to take a serious interest in them), not much can be said with precision about the category of nominal damages. They were not defined, nor (unsurprisingly) was there any specified quantum which would allow us to identify them in a mechanical fashion. However, there is sufficient evidence to establish the existence, at least from the early 18th century, of derisory damages granted by juries. Examples include Woodford v. Eades^[47] and Markham v. Middleton,^[48] where damages of one penny were awarded: these are impossible to explain other than as symbolic damages sans loss. From 1770, the phrase ‘nominal damages’ can be found with regularity in the law reports—the first mention appearing to have been in the context of an action for ejectment, in Goodtitle v. Tombs (once the action became one for the recovery of ‘the term’ itself, only ‘nominal damages’, said the court, could be recovered in addition).^[49]

Even longer established than nominal damages, of which it is a necessary but not sufficient underpinning, is the doctrine of iniuria sine damno: in modern parlance, of wrong without loss—which entails as a matter of analytical necessity that the violation of a right does not in itself amount to a compensable loss. The idea can be found as early as Sneade v. Badley, a defamation (slander) case from 1615. When Dodderidge J opines that ‘[t]o maintain an action upon the case for words, two things are requisite, damnum and iniuria’,^[50] he necessarily excludes the possibility that the iniuria (wrong) might amount to a damnum (loss), for otherwise iniuria would collapse into damnum (and indeed trespass into case). Again, the only ‘longstanding tradition’^[51] one can identify in the case law is that of separating out the infringement of the right from the detriments flowing from it; and only giving nominal damages when there are in fact no such (factual) detriments.

False imprisonment.

Against this, it has been argued that it is not possible to find actions in wrongful imprisonment sounding in nominal damages only before the judgment in Lumba^[52] (a case which, on this view, would have to be regarded as a deviation from the very ‘orthodoxy’^[53] to which it was, in reality, giving effect). Now, it is true that damages for wrongful imprisonment will all but invariably sound in substantial damages; but that is for the obvious reason that detention will all but invariably be a grievous experience for the claimant. In itself, this tells us nothing.

It is only when we examine cases where there might in fact have been a wrong but, arguably, no (factual) loss that we can test the validity of the claim that the imprisonment sounds in substantial—compensatory—damages regardless of loss. The obvious test case is the situation where there was confinement (ex hypothesi illegal) but no awareness of it at the time. Here, too, all the authorities suggest that, absent any factual loss, nominal damages will in fact be granted. This was recognized in the clearest possible terms by the House of Lords in Murray: ‘[i]f a person is unaware that he has been falsely imprisoned and has suffered no harm, he can normally expect to recover no more than nominal damages’.^[54] It was also the position already taken by an American court in the earliest example that could be found of such a scenario, in the mid-19th century. Accordingly, it is not a deviation from principle; it is the principle.^[55]

Loss, damnum and factual detriment.

Confirming the above point is the history of the concept of loss itself. Difficult though it too might be to pin down, because the term and its cognates were rarely defined, and also because issues of compensation were intertwined with analytically separate considerations (such as punishment or solatium), it would be uncontroversial to say that (i) the concept of loss originally made no reference to any idea of normative or abstract loss; and (ii) there is no evidence that it was ever widened to encompass it.

In Roman law, there does not appear to be any doubt about the fact that damnum was restricted to financial loss. Awards for what we would call today non-pecuniary loss were of a punitive nature (poena), awarded as a solatium for a sense of insult. In medieval common law, there is no doubt either as to the fact that an award of damages was also available, from an early time, for non-pecuniary loss (again with a particular focus on dignitary issues: the sense of insult or shame felt by the claimant)—although whether the damages awarded were understood as compensatory is almost impossible to ascertain from our modern perspective.^[56] The important point is that there is clear evidence for damnum/ financial loss being encompassed in an award of (compensatory) damages; and also for emotional harm being redressed through awards which, at the very least, came to be regarded as compensatory. But there is no evidence that the concept of loss, whichever word(s) or label(s) might have been used, underwent further expansion towards losses which we would regard as abstract or normative: not in the cases and not in the literature either. Absence of evidence is, in such circumstances, clear evidence of absence.

True enough, losses articulated in terms of protected interests are commonplace both in the learned law of the ius commune and in earlier English case law: the likes of ‘loss of life or limb’ or ‘loss of liberty’.^[57] Already Thomas Aquinas defined damnum/ loss in terms of the deprivation of what belongs to oneself: not just things external, but also one’s own person (limbs, dignity and the like).^[58] But, transparently, this was never meant in contradistinction from factual losses: the loss of a chattel was the loss caused to one’s pocket; the loss of limb the pain and suffering (and indeed financial detriments) this deprivation caused, etc. As evidenced by the fact that these factual losses are never cited as separate, additional forms of damnum, they were another way of describing the same loss. There were not two items of compensation, but one.

A note on defamation.

It is of course not just wrongful imprisonment that can be conceptualized in terms of this basic analytical framework, whereby the violation of a protected right constitutes the wrong (the iniuria) and then compensatory damages make up, within the ordinary parameters of liability, for the detrimental consequences of the wrong, pecuniary and non-pecuniary—that is, on the wallet and on the mind (the damnum). On this view, there is no room for compensation of the right violation itself. The iniuria is a peg on which the damnum can be hanged: it is what makes it wrongful hence, prima facie, compensable; but that is all its role is. It makes no difference, in this respect, whether the wrong is actionable ‘per se’ or not.

The one tort that is troublesome in this respect is defamation, at least to the extent that it is actionable per se.^[59] No one seems to deny that, in such cases, the pecuniary consequences of the defamatory statement are compensable according to ordinary principles.^[60] Distress also is.^[61] However, two further heads of compensation are commonly mentioned: injury to reputation, and vindication of reputation (in Laws LJ’s words, damages ‘to repair the harm to [the claimant’s] reputation; and as a vindication of his reputation’).^[62] When it comes to the former, it seems that this is no more than a shorthand description of some consequences, pecuniary and non-pecuniary, of the defamatory statement: as McGregor on Damages puts it, ‘[t]he compensation is awarded for the pecuniary or non-pecuniary losses that flow from that injury to reputation, either in the usual course of things or in the particular case’.^[63] The question then becomes that of the relationship of this head with the first two. Nothing in the law of defamation is conceptualized especially neatly but, building on this statement, one possibility would be to see this third head as being concerned with losses not specifically averred and proved—a form of standardized award compensating for losses likely to have occurred or occur in the future given the nature of the defamatory statement complained of. In any event, there is no suggestion that compensation here would be for anything other than factual losses, if presumed ones.

The head referred to as ‘vindication’ is more problematic. Being included under general damages, which have themselves always been understood as compensatory, it is unlikely that the damages are meant to be vindicatory in the narrower sense examined earlier. McGregor seeks to rationalize them as compensation for future losses, both pecuniary and non-pecuniary.^[64] To the extent that it is possible, this way forward should be favoured. However, there is a further dimension to these awards which might not be capable of such rationalization. If it is true that these reputation-vindicating damages ‘must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge’^[65]— a form of declaration of falsity (by equivalent)—then what their existence highlights is a problematic feature inherent in the wrong of defamation: the fact that it is powerless, in itself, to clear a person’s name, in the sense of upholding his prior reputation.

It is not just that a winning verdict will not, in principle, contain any judicial declaration that the statement was false; the structure of the tort of defamation means that it will not even be a logical implication. Falsity not being a requirement of the cause of action (truth goes to defences, and there are many legal systems where truth does not justify in and by itself), it is entirely possible to win in defamation without having satisfied the court of the baselessness of the charge (e.g. because truth was not a defence or the defendant was unable or unwilling to provide sufficient evidence). Conversely, the claimant can lose despite the charge being provably false (for instance, because the defendant was able to raise another defence, such as publication in the public interest).

Because of this, and because clearing their name is evidently the primary aim of many claimants whose reputation has been (unfairly) sullied, it is easy to see why courts would want to help such claimants ‘vindicate’, in that specific sense, their reputation; and hitting the defending parties with headline-grabbing judgments is an easy way of doing so. Yet this is problematic twice over: first, as mentioned, because the falsity of the claim is not the flipside of judgement for the claimant and might not even have been specifically pleaded in court; second, because such damages are not in any meaningful sense compensatory (not for a factual loss, and not for a normative loss either). They are expressive; and ‘sending a message’ has never been a part of the principles of compensation. One way or the other, defamation awards are in fact problematic, but this ‘problematicness’ cuts across the debate that interests us. The difficulties they present are of a different nature.

B. Recent Headways

The fact that these awards have no basis in authority, and indeed are incompatible with foundational principles of the common law, is not to deny that they have in fact made some headways into the modern law, both in scholarship and case law. Indeed, there would be much less of a point in examining them if that were not the case.

The extent to which they have made such headway as a matter of positive law is not evident to ascertain. This is because, as explained, the language of ‘loss of right’ is not new; indeed, despite never having been widespread, it is very old. But, as the examination of the above cases has exemplified, such language would not have been used with a view to finding a second—normative—basis, alternative to factual loss, on which to grant compensatory damages (or, to put it differently, to arguing that the loss of the right was, apart from any detrimental consequences, the basis for a substantial award). It was another way of construing the same loss. When courts spoke the language of lost rights, this was not intended to mean, and should not be understood to mean, compensation for the right-invasion itself (with the twofold consequence that substantial damages should be awarded in the absence of factual loss, and on top of such factual loss). It should not be controversial to say that it is only when the question is at stake before the courts that their judgments can be taken as a meaningful indicator one way or the other. Going through the cases, it seems that there are only two torts where such a claim has been made in an unadulterated way in Anglo-Commonwealth law: false imprisonment and breach of privacy. As mentioned, ‘normative claimants’ lost on the first head before the highest court of Australia; they have, however, enjoyed some success in England when it comes to the second.

(i) Loss of privacy as a detriment

The clearest judicial statement that loss of a right, in this case, the right to privacy (more specifically the right ‘to control the dissemination of information about one’s private life’), can be a compensable detriment—on top of, hence separately from, factual losses (emotional harm in that case)—has come in the English misuse of private information case of Gulati. Eight claimants had brought proceedings against the Mirror Group Newspapers for damages after their phone had been hacked for several years. Most of them were aware that they were under surveillance because articles were being published containing private facts about themselves; however, one, BBC executive Alan Yentob, was not (although he too ultimately found out).

In the High Court, Mann J opined that, contrary to counsels for MGN’s submission (and pecuniary loss never having been an issue in the case), an award of compensatory damages need not to be limited to distress, but could also include compensation for the lost right itself. The court answered the submission about non-cumulation in this manner:

If one has lost ‘the right to control the dissemination of information about one’s private life’ then I fail to see why that, of itself, should not attract a degree of compensation, in an appropriate case. A right has been infringed, and loss of a kind recognised by the court as wrongful has been caused … Of course, in a great number of cases the emphasis will be on the distress caused … Distress will often be the consequence of the infringement to such a degree as to subsume any potential separate award for the infringement itself; but where appropriate the stated values ought of themselves to be protectable with an award of damages.^[66]

This was approved, unambiguously but without further justification, by the Court of Appeal;^[67] permission to appeal to the Supreme Court being subsequently refused. The same Supreme Court went on to endorse the principle in Lloyd^[68], although it refused in the same case to analogize Gulati to damages under the Data Protection Act 1998, reversing the Court of Appeal’s decision on this point. Thus ‘normative damages’ have not, for the time being, percolated into the law beyond the one exception of misuse of private information (and, it seems, only in English law).

We will return in the next section to the question of why this is wrong as a matter of principle, and what might have prompted this misturning. For now, suffice it to mention two things. The first is that, for the considerable length of the first instance judgment, very little argumentation was in fact provided. A submission made by counsel was rejected out of hand (‘I fail to see’), without any engagement with legal principle. The second is that the High Court’s discomfort with its own decision comes through in the very words of the judgment. For, if the loss of the right to (informational) privacy is valuable ‘of itself’—read, apart from distress—then it is not clear why it should only be compensated ‘in an appropriate case’—nor indeed what ‘appropriate case[s]’ would be in the first place.

The rest of the quoted statement gives away the answer, if in a convoluted way: ‘appropriate cases’ are those where there will not be a normal quantum of distress, which would then ‘subsume’ the normative loss and render an additional award not only unnecessary but indeed inappropriate. Short of saying so in so many words, it could hardly be made clearer that the normative loss is not self-standing; it is an alternative (subsidiary) way to award the level of non-pecuniary—that is, distress—damages regarded as appropriate (‘normal’) in situations where there is not, or at least there does not appear to be, enough emotional harm.^[69] The instrumentalism (and, behind it, the fact that not even proponents of normative awards appear really to believe that the loss of right should be compensated in and by itself, independently of consequences) are transparent.

(ii) The encounter with private law theory

Doctrinally, the significant break does not occur when losses are being described in terms of protected interests, or even compensated in such guise. The idea that you can complain of a ‘loss of limb’ and get compensated ‘for’ it would probably have been regarded as unproblematic for most of the history of English law. Crucially, though, it would not have been understood as a different proposition from the fact that you could get compensated for the pain and suffering, medical expenses, loss of earnings, etc., which you had experienced as a result. The idea that you could get damages for your abstract loss independently of factual loss, hence—at least potentially, or indeed normally—in addition to or in the absence of such loss, this would have been regarded as plain wrong. Indeed, it is only recently that the argument has been brought to courts: accepted, as was seen, in some very limited circumstances in England; rejected in a general, yet ambiguous, way in Australia.^[70]

The intellectual genealogy of this idea would deserve a work of its own. Anglo-Commonwealth private law has in the recent past, in stark contrast with most of its history, become saturated with the language of rights; and this emphasis on rights has observably percolated into remedial law. Writing in 2012, Professor Stevens described ‘the idea that damages are sometimes awarded not to compensate for losses consequential upon the suffering of a wrong, nor to strip the defendant of any gain he or she may have made as a result of a wrong, but rather because of the wrong itself’ as ‘[a] meme which has gained significant prominence recently within private law’.^[71] Normative damages, understood as substantial compensation for the loss of ‘the right itself’, are one aspect of this idea, vindicatory damages and Stevens’ own theory of ‘substitutive damages’, popularized in his 2007 book Torts and Rights, being two others.

If one tries to locate the at least direct origin of normative damages in Anglo-American scholarship, it would have to be in the writings of Ernest Weinrib, the tutelary figure of modern rights scholarship. Although Professor Weinrib does not speak of ‘normative damages’, he does speak of normative loss, and he does speak of it in contradistinction from factual loss. Basing himself on an (obscure) passage of Aristotle’s Nicomachean Ethics dealing with a case of battery,^[72] Weinrib derived and generalized the idea that whenever a wrong occurs, one party suffers a loss and the other makes a gain: respectively a normative loss and a normative gain. Because he was wronged—that is, because his right was violated—the claimant has suffered a loss; conversely, the defendant, because he took away the right, made a gain.^[73] These, in his view, are distinct from what he calls ‘factual losses’ and ‘gains’, which (with some fine-tuning) are concrete losses and gains as we have historically understood and remedied them in the law of damages.^[74]

Certainly, Professor Weinrib does not argue that normative losses and gains are the basis of awards made in court—so much is clear despite his quasi-silence as to the basis of these awards.^[75] The concepts of normative loss and gain seem to be no more, for him, than a way to link up—in his language, to ‘correlate’—the parties in a private law dispute, and explain why it is this particular defendant who has a duty to provide redress to that particular claimant. If Weinrib believes that normative losses can be compensated, or normative gains stripped off, he never says so. Yet, clearly, his argument paves the way for such compensation, which is not just the next step, but the next logical step. For, loss and compensation have always been regarded by lawyers as the flipside one of the other: compensation is for loss, and for loss only; conversely, what is a loss (for lawyers), if not something that can be compensated in court? We can understand why scope of liability rules mean that there would be such a thing as a loss which will not be compensated on the facts of the case (e.g. it was too remote); but if, say, distress was never compensable in court, it is hard to see how we would have come to speak of it as a ‘loss’. We call losses artefacts which are capable, in principle, of being compensated by the law. If a normative loss was not capable of being compensated, it would not be a ‘loss’ in the world (and language) of lawyers. The remedial implications of Professor Weinrib’s arguments are clear, even if he himself did not draw them out.^[76]

The way in which this idea percolated down might be impossible to pin down but, given Professor Weinrib’s influence on Anglo-Commonwealth private law scholarship,^[77] it is peculiarly hard to doubt that cases like Gulati and Lewis arose at the junction of difficult fact patterns and an intellectual terrain that had made it possible to press the—historically jarring—idea that substantial damages could be granted to the claimant on the sole basis of the right-infringement. Again, normative damages represent one way of pressing the idea: as compensation for a loss, an abstract (‘normative’) loss consisting in the wrong itself.^[78]

C. An Ambiguous Stop: Lewis v. ACT

In Lewis v. ACT, as mentioned, this very heterodoxy was argued before one of the leading supreme courts of the Commonwealth. The ‘prominent meme’ was pleaded that, whether as compensation or vindication, Mr Lewis should be entitled to substantial damages because he was wrongfully imprisoned, despite its being common ground that the defendant had not caused him any factual loss. Even though he lost in a unanimous judgment, this cannot be the end of the story from an English perspective. This is not just because Lewis is not binding in England: this is true, but then there is hardly any judicial pronouncement, even from the United Kingdom Supreme Court, that could not be challenged anew. In terms of persuasive authority, Lewis ranks as high as a judicial decision could hope to. Nor is it because Lewis could not have been wrongly decided, even as a matter of Australian law: of course, it could (although immediately we must wonder on what basis this would be argued in a judge-made system, where the ‘wrongness’ of decisions is assessed against legal principles which are largely judge-made, to the effect that Lewis would have to be judged against itself).

The main difficulty with Lewis is different. It is that it had to answer a question of principle—does the loss of a right sound, in and by itself, in substantial compensatory damages?—from the most inauspicious of vantage points. For, the common ground in the appeal was that Mr Lewis had been wrongfully imprisoned but, had he not been, he would have been rightfully imprisoned. No one challenged that he had been wronged; but everyone seemed to accept that, on a but-for counterfactual, he had not suffered any (at least factual) loss, hence should in principle—unless, that is, the principle itself was changed, which was the purpose of the appeal—receive nominal damages only. Against this, his counsels argued that the counterfactual should not be so defined; or else that the substantial damages should be construed as non-compensatory, in effect as vindicatory. Again, only the first limb of the argument is of concern here.

The difficulty with it is twofold. For one thing, the law of counterfactuals is analytically distinct from the question of loss definition and loss compensation. It may well be that the but-for test is not a very good test of causation; but then, if Mr Lewis could establish causation of factual loss, his point of principle would become moot (for there would be no need to find another route to substantial compensation). This highlights the second difficulty, which is that the way the appeal was brought to the court would seem to involve both sides of the dispute into considerable logical difficulties, thereby rendering Lewis a much weaker authority than it would otherwise have been. These difficulties have to do with the definition of the wrong itself, and the interplay between liability and remedy in false imprisonment.

Mr Lewis’ counsels argued that he had been wrongfully deprived of his liberty and it should not be relevant to his remedy that he would have lost it anyway. This, however, seems to prove either too little or too much. For, if it is neither here nor there that he would have lost his (abstract) liberty but-for the defendant’s wrong, then presumably it should not be relevant either whether he would have suffered factual loss anyway: it is hard to see why sauce for the goose, here, would not be sauce for the gander. But then, if he has suffered factual loss (which he evidently did), and wrongfully so (which was accepted), and it does not matter what would have happened but-for the wrong (the argument made), then logically he could have claimed full, substantial compensatory damages for his false imprisonment according to orthodox principles. The counterfactual having been successfully neutralized, the logic of his counsels’ argument is that he should be entitled to ‘ordinary’ compensation for the distress caused by the wrong (as in Gulati, pecuniary loss was not pleaded). There was no need, on their own argument, to appeal to a novel basis for substantial damages—compensation for the lost liberty itself.

However, the High Court does not seem to fare better logically. For, if it is accepted that it matters that he would have lost his liberty anyway (i.e. but-for is the correct counterfactual here), then necessarily the defendant did not cause his loss of liberty in the relevant legal sense. But if they did not relevantly deprive him of his liberty, then how can they have wrongfully imprisoned him? One cannot wrongfully imprison another unless one imprisons him in the first place, that is, causes him to lose his liberty. If so, then the logical implication is that Mr Lewis was never wrongfully imprisoned to start with.^[79] And so it seems that the verdict of the Court, though right in principle, is incompatible with the basis on which the appeal was brought before it, making the case the quickest of sands on which to answer the above question of principle.

The idiosyncratic difficulties of the case—counterfactuals in tort and the definition of false imprisonment—having used up much of the Court’s reasoning in Lewis, it is important to reaffirm, and explain in a more general way, the orthodoxy it upheld: namely, that the loss of a right is not, as a matter of principle, a compensable detriment.

4. Reaffirming Orthodoxy

It is not difficult to sympathize with the likes of Mr Lewis or Mr Yentob. Nor is it difficult to feel lured by the idea that, because a right is valuable, its violation should also sound in something that is valuable, namely, money. This, however, is a temptation that ought to be resisted. Just because it is intuitively appealing, and indeed seems fair, does not mean that it is right (nor indeed fair). Normative damages are wrong as a matter of principle; in fact, as this part will also seek to show, they are not necessary in order to achieve justice even in difficult-looking cases. What we need is not a novel, unorthodox set of principles; it is to better understand, and apply, the age-old orthodoxy of the law.

A. Normative Damages Are Wrong as a Matter of Principle

Part of the argument against normative damages has to be that they have no basis in history; indeed, as was seen, that they make a mockery of some ancient doctrines. This should suffice to dispose of the argument that they exist as part of our law. However, it is also important to explain why they should not be recognized as such, that is, why they are wrong as a matter of principle. The argument is twofold, the two halves of the argument reinforcing one another. First, they amount to counting the same loss (injury, harm, detriment) twice; second, they are not in fact concerned with the right violation in itself but rather, like factual damages, with consequences—albeit consequences differently construed. In other words, ‘normative damages’ are not in fact normative.

(i) Losses factual and normative

Understanding why normative loss is not an object of compensation requires examining its relationship with factual losses (pecuniary and non-pecuniary). Speaking of damages for ‘loss of limb’, ‘loss of reputation’, ‘loss of privacy’ or ‘loss of freedom’ sounds innocuous enough until one starts to ask how these relate to damages for the financial and emotional harm caused by the wrong, which have to be our starting point, because no one doubts that these exist and are compensable within the ordinary parameters of the law (causation, remoteness, mitigation, etc.). Now, part of the difficulty is that non-pecuniary losses are, ex hypothesi, not valued on the market, hence are arbitrary. As a result, it is difficult to prove or disprove any doctrinal hypothesis seeking to explicate the law by comparing actual awards made with what the hypothesis would dictate. For this reason, it is helpful to start with situations where awards have been stabilized the most through tariff-like systems (the market-substitute equivalent, for the valuation of non-pecuniary losses, of the market when it comes to pecuniary ones); and then reason away from them.

Personal injuries and negligence.

Starting with the perhaps most ‘core’ area of tortious damages, it is beyond dispute that a claimant who was, say, blinded by the defendant’s negligence is entitled as a matter of English law, by way of (compensatory) damages, to two awards: firstly, to compensation for the pecuniary consequences of the wrong: his medical expenses, cost of home adjustments, loss of earnings, etc. Secondly, to an award of around £270,000,^[80] which may in principle vary up or down to reflect his own circumstances but has, in reality, so settled down that litigation has all but died out: except in very unusual situations (such as the claimant being unconscious), this is a close approximation of what he will effectively get in court. The first award, often referred to as ‘special damages’, corresponds to the claimant’s (compensable) pecuniary loss—all of it and nothing but it. Thus the second necessarily corresponds to his non-pecuniary loss. Although the label is unhelpful because it is both unstable and devoid of intrinsic meaning, this part of the overall award is often referred to as ‘general damages’.

What, then, do these general/non-pecuniary damages correspond to? We might want to call the ‘general loss’ a ‘loss of eyesight’: the damages, on that view, compensate for the blindness (apart, ex hypothesi, from its financial consequences, which are assessed separately). Alternatively, we could call it ‘pain and suffering and loss of amenity’, the label most commonly used to refer to emotional harm in the context of physical injuries. Both designations are used in practice; indeed both are acceptable.^[81] The one thing which matters is that, as no one has seemingly ever challenged, they are alternative not cumulative labels. To put it differently, the damages do not get higher by multiplying labels.

It is beyond doubt that the claimant will get the same quantum of damages regardless of the label(s) used, by himself or by the court. Whatever the description of the non-pecuniary loss(es), they are always worth, in the end, in the region of £270,000. This is for a reason which is simple as it is fundamental: it is the same loss(es) one is referring to. There is no loss of limb on the one hand and emotional harm on the other; there is one non-pecuniary loss, which is a form of emotional harm (the damages are for ‘pain and suffering and loss of amenities’ (i.e. pleasures)) but can also be described, alternatively, as the loss of a right: here, the loss of that specific component of physical integrity that is eyesight. Most of the time, which approach is preferred is inconsequential, because it is understood that ‘loss of eyesight’—that is, the physical injury itself (the blindness)—is a shorthand for ‘the non-pecuniary consequences (ordinarily) associated with the loss of the limb’. It is only in situations where the claimant’s particular consequences are not the ordinary ones, statistically or normatively, that the differences begin to matter (for instance if he is, precisely, unconscious).

No tertium quid.

To put the same point differently, there is no doubt that, once the blinded claimant has been compensated for the consequences, pecuniary and non-pecuniary, of the wrong, for all intents and purposes the wrong has been blotted out. Having received his £270,000, typically described as ‘PSLA’, and damages for his pecuniary loss, his claim has been extinguished. He cannot and will not recover for the physical injury (itself) on top of this. Having received his £270,000 for his emotional harm, and additionally any pecuniary loss he might (contingently) have suffered, he cannot return to court and get additional damages because he was physically injured (i.e. he lost his eyesight). This is not a distinct loss, harm or injury: at best it is a different label under which he could have claimed the £270,000. Undisputedly, there is no award of normative damages on top of the factual here.

(ii) Does it ‘depend’?

Reasoning from the core case.

What makes it possible to demonstrate the point, in that case, is, again, the fact that damages have been strongly standardized. There is, in English law, a quasi-tariff for the claimant’s blindness which makes it possible to be certain that he will not get more by using different, or additional, labels. But the logic ought to be exactly the same for other injuries; indeed, save for the irritants mentioned above concerning the law of privacy (though even they are ambiguous) and the law of defamation (which cut across the issue under consideration), there is no evidence that it is not. Thus, once the cost of repairing my negligently damaged car or the diminution in its value has been compensated (assuming the emotional distress not to be such as to merit an award), I have extinguished my claim; I do not get another award for the fact that my car has been damaged, independently from—hence on top of—any consequences. The logic is the same and the result is the same across the board of torts: I do not get an award for my physical injury and one for its consequences; one for my damage to property and one for its consequences, etc. The same is, or ought to be, true for my loss of reputation, of privacy, of dignity, etc.

And so, returning to Lewis and false imprisonment, it is true of loss of liberty as well—as a matter of principle, quite apart from the idiosyncrasies of the case. Because there is no market or market-like (i.e. tariff) system that gives us the ‘right’ answer, it is not possible to demonstrate in the same way as with the blindness that under- or over-compensation (e.g. double counting) is taking place. But this epistemological difficulty changes nothing to the principle itself: you do not get damages for the loss of freedom and also damages for the emotional harm caused by the loss of freedom. You get, apart from any consequential pecuniary loss, one award, which is for emotional harm but can also be described, in a shorthand way that only becomes problematic when it is not evidently (like in Lewis) the flipside of the first, as being for ‘loss of liberty’.

Cause of action?

This principle, again, is not right-dependant. Liberty is no more compensated for its own sake than property; privacy than physical integrity, etc. (nor is there any reason why there should be any difference). To this, it might be responded that compensatory principles do, on the other hand, depend on the cause of action used, in particular, whether the tort is actionable per se (in particular trespassory actions) or not.^[82] But this is, again, a misreading of the law of damages. There is no suggestion in the law that the blinded claimant’s loss will be construed more favourably, or indeed differently, by suing in battery rather than negligence (he might receive a different quantum, indeed more, for example, because the rules of remoteness will be more favourable to him; but that is a separate issue). Certainly, he will not get a further award for ‘loss of physical integrity’ simply by reframing the claim as one in trespass. In the same way, I will not get more for my bumped car if I frame the claim as one for trespass to goods.^[83] The claimant can get a verdict in his favour (and indeed nominal damages) in a tort actionable per se simply by proving the wrong; but he certainly does not get substantial damages if the court is not satisfied that he has suffered loss (in the proper, i.e. factual, sense of the term).

(iii) Valuation: falling back on consequences

Another way of understanding why ‘normative damages’ are inherently wrong-headed is to examine them from the perspective of valuation, perhaps the most obvious question that any concept(ion) of damages would raise, yet one that is typically paid scant attention to.

Edelman J made the point (perhaps too) tersely in Lewis: ‘As Mr Lewis accepted in oral submissions, independent of all such consequences the award should be the same whether he was imprisoned in conditions of luxurious comfort or appalling depravity. Similarly, on Mr Lewis’ submission the award should be the same if he were imprisoned for 82 days or 820 days’.^[84] To this, Professor Stevens had answered by anticipation that ‘[t]his objection would seem to misunderstand the basis on which quantification is made … [I]f I negligently scratch the pain on your Rolls-Royce this does not mean that I must pay the full value of the panel, despite the accession of the paint to the panel and the panel to the car … [W]hat is quantified is the value of the infringement’.^[85] This is, of course, true as a matter of positive law; but it is very hard to see how it does not completely walk back on the idea that damages are awarded ‘because of the wrong itself’. If substitutive damages are quantified based on the scope of the consequences on the claimant, in what sense are they not compensatory in the ordinary (factual) sense of the term? The same point would apply to normative damages quantified on a similar basis.

Is it possible to escape the conclusion that the normative award should be the same regardless of the consequences—the same for 82 or 820 days, for luxurious or horrid conditions? The obvious counterargument would seem to be that valuation depends on how serious the infringement was. But how is seriousness evaluated, indeed what does it even mean, apart from consequences—at least consequences in the ordinary course of events? The reason why, all things being equal, we regard imprisonment for 820 days as worse than 82 days is because it would hurt the claimant much more emotionally; and the same is true for the conditions of detention.

Naturally, there might be very unusual (“extra”-ordinary) circumstances where this would not be the case, for instance, someone who does not care about being jailed because his life outside of jail is even more painful to him: that person would not suffer more over 820 than 82 days of imprisonment. But this does not mean that he would not be able to get substantial damages, indeed a much higher quantum of them in the first scenario, on orthodox principles. The reason is that, rightly or wrongly, the law already standardizes awards to a large extent, based on ordinary (expected) emotional responses to the wrong suffered. This is the reason why pretty much all wrongfully blinded claimants get c£270,000 by way of compensation for their non-pecuniary loss. Their PSLA is assessed on the basis of the emotional response that would be expected from an ordinary claimant. This does not stop the damages from being an award for emotional harm.

An imprisonment of 820 days is a more serious infringement of liberty than of 82 days because it would ordinarily lead to much greater suffering: indeed there is no other reason, based on ordinary language, why we would want to say that one violation is ‘worse’ than the other. (Likewise, the only reason why it is worse to write off the Rolls-Royce than scratch the paint on the door is that it costs more to remedy it.) Individual-independently though it might be defined, length is simply one proxy, among others, for the extent to which the claimant would have been affected in the ordinary course of events. When it comes to the conditions of detention, this relationship shows itself to be unmistakable: it is difficult to see how one would even try to argue that detention in squalid conditions is worse than in luxury without appealing to the emotional effect on the claimant (though note again that it would make no difference to, say, the claimant in a coma; just like the Rolls-Royce driver would not be out of pocket for more if he happened to have been on his way to the skip when the car was written off, rather than scratched). The criteria for ‘seriousness’ may be more or less closely related to the claimant’s—ordinary—emotional harm (or indeed financial loss); but they are always proxies for it.

Normative in name only.

In that sense, Edelman J was right, and anyone who is not prepared to accept that normative damages really are independent of consequences, hence should be the same given one (indivisible) right, regardless of the violation—a scratch to the door or the destruction of the car, imprisonment for an hour or a year—is not really a ‘normativist’. He really is, as indeed most everyone would be, interested in consequences.

At this point, it should have become apparent that what someone like Mr Lewis wanted was not damages for the fact that his liberty was violated per se (a fixed sum that the court would have had, somehow, to determine, apart from any consequences) plus pecuniary loss ($0 in his case, though contingently) plus non-pecuniary loss (also $0 if the orthodox counterfactual is accepted); it really was damages for the non-pecuniary loss that he did, in fact, suffer, notwithstanding the fact that he would have suffered it anyway. To put the same point differently, what he was really arguing for was not a recharacterization (through a process of abstraction) of the loss he had suffered; it was an attempt to find a different legal route to the same quantum of damages, hence the same—factual—loss, which the orthodoxy had closed the door on him for causal reasons.

From this, it follows that ‘normative damages’ are not ‘normative’ in any meaningful sense; they are factual damages for consequences, but consequences construed differently (a form of extreme standardization, immune to all considerations of causation, remoteness, etc., in order that the claimant should receive, as a minimum, damages reflecting the ordinary consequences of the right violation). Having severed these ordinary consequences from the actual claimant’s own situation, these can now be regarded as the value of ‘the right itself’. But, again, this is a sleight of hand. What Mr Lewis wanted damages for was what he would have received had it not been for the troublesome counterfactual: that is, the emotional harm suffered by a man wrongfully imprisoned for 82 days, not 820 days^[86] (a sum which the trial judge had hypothetically assessed at $100,000).^[87]

B. The Orthodoxy Needs to be Better Understood

The above argument, if correct, suffices to explain why the doctrine of normative damages, novel and heterodox, is wrong. The orthodoxy (‘factual damages’) should not be regarded as wrong, or the rules changed, simply because it does not, in particular instances, give (or appear to give) the result one might have wished: a rule that can be evaded at will is no longer a rule. However it is important, in parallel, to defend orthodox principles: this can be done, at the very least, by looking at the above two leading cases, where the debate was brought to the fore. We can probably all accept that, if indeed Mr Lewis was wrongfully imprisoned for 82 days, it would be ‘surprising’^[88] if full compensation for his loss amounted to $1; in the same way, it would be problematic if a privacy claimant who was not aware that his phone was being hacked only received a nominal (or small) quantum of damages. However, this is not what the orthodoxy says.

(i) Lewis: better defining causes of action

Starting with Mr Lewis, it would indeed seem absurd to say that he suffered wrongful imprisonment but no compensable loss. However, the answer is not that he should get substantial damages; it is that he was never wrongfully imprisoned.

As mentioned, this is where the reasoning of the High Court of Australia did in fact appear to take it, even though it was not at liberty to challenge a matter that was not being appealed. For, if indeed Mr Lewis would have lost his liberty anyway, it is difficult to see how the defendant caused his loss of freedom, therefore imprisoned him; and if he was not caused to lose his freedom in a relevant way, he cannot have been wrongfully imprisoned at all. It is also the view I would take, although for a different reason. The key difference is that, to my mind, the loss of liberty goes to the wrong itself, not the scope of its potentially compensable consequences. Wrongful imprisonment is wrongful imprisonment, that is, wrongfully caused loss of liberty. The loss of liberty is a component of the wrong; it cannot be a consequence of it. (It could be a consequence of, say, wrongful arrest, but it is not a consequence of wrongful imprisonment, no more than arrest could be a consequence of wrongful arrest. A consequence is analytically separate from its cause.)

Did the defendant, then, wrongfully deprive Mr Lewis of his liberty? The answer is no. But it is not because he did not lose his liberty at their hand. Of course he did. If but-for causation says otherwise, then I would agree with critics that the but-for test is wrong. It is equally absurd, to my mind, to say that they did not deprive him of his freedom because he would have lost it anyway, than to argue that, if I take an iron bar and smash your leg because you did not pay me your debt, yet other creditors waiting outside with their own bars would have done the same if I had not got there first, then I have not caused your injury. If the law thinks this way, then the law is wrong.

But his loss of liberty was not wrongful. If, by wrongful imprisonment, we mean imprisonment (loss of freedom caused by, or as a result of, the defendant’s conduct) without authority to deprive the person of his freedom, then it is very clear that the ACT did have authority to deprive Mr Lewis of his liberty. He had been validly sentenced to a term of imprisonment and had forfeited the benefit of periodic detention. At no point was it disputed that he did fail to meet the conditions of his periodic detention, and that statute permitted this more favourable arrangement to be cancelled as a result. The only relevant consideration was whether he had in fact failed to meet these conditions, which undisputedly he had.^[89] Accordingly, the Territory had every right, in law, to seize his person.

What then (if anything) did the ACT, acting through the Board, do wrong? The answer is that they denied him the procedural fairness to which he was entitled. He ought to have been given a chance to make representations for himself if he so wished (the sole practical purpose of which would have been to challenge the materiality of the facts reproached to him, or argue that he should be retrospectively excused (which was no longer an option in this case)). Though he might have had—constructive—notice of the meeting, the trial judge held that this was not certain. In that sense, he did suffer a procedural wrong. However, this is very different from saying that his later imprisonment was itself wrongful. An authority that is wrongly exercised is still prima facie an authority;^[90] and the ACT did have (and retained) lawful authority to imprison Mr Lewis.^[91] From this it follows that he was not wrongfully imprisoned (not in the High Court’s sense that he was, as it were, wrongfully non-imprisoned, but that he was non-wrongfully imprisoned). He suffered loss as the result of a non-wrong; but he did not suffer loss as a result of a wrong—and this is the reason why he should not have received any damages (not, indeed, even nominal).^[92]

(ii) Gulati: better understanding non-pecuniary, and future, losses

Turning to Gulati, it would be a serious misunderstanding of the orthodox model of loss compensation to believe that Mr Yentob would only have been entitled, on it, to a paltry sum, due to his not having been ongoingly aware of the wrong committed against him. What orthodoxy says is that compensation is for (factual) loss and (factual) loss only, but then of course for all factual loss: pecuniary and non-pecuniary; past, present and future.

That non-pecuniary loss has historically been insufficiently well understood and compensated seems beyond doubt;^[93] but the same can be said—indeed, probably more so—of future losses, especially future non-pecuniary losses. It is not difficult to understand why. Non-pecuniary losses are harder to comprehend than pecuniary ones, and future ones than past or present ones. Future non-pecuniary losses—when the claimant will, or might, be (remain or, even worse, become) aggrieved in the future—seem very ‘aethereal’ indeed. Yet, orthodoxy is unambiguous: they too are worthy of compensation (if, as always, with a discount for uncertain future losses to reflect the probability that they might not materialize).

On this reading, it becomes clear that Mr Yentob was in fact entitled to a high quantum of damages, like his fellow claimants. It is probably true that, all things being equal, he suffered less than the others; but suffer he did, and very significantly too. Immediately before point t where he found out, he had admittedly not suffered anything. But at point t, the facts blew in his face and, almost instantaneously, his own experienced loss caught up very quickly (indeed the sense of violation might be worse for its suddenness and lack of forewarning). Furthermore, the emotional harm he suffered was ongoing: just like the victim of, say, rape will always live with the emotional consequences, if perhaps in a way that gradually tapers, the victim of a serious invasion of privacy (an intrusion which is indeed not without parallels with rape) will suffer the harm in a continuing way. Seen in that way, if one takes death as the reference point for the estimation of overall loss—past, present and future—, then Mr Yentob’s position turns out to be only slightly less serious, all things being equal, than that of his fellow claimants. Accordingly, he too should receive a high quantum of damages on orthodox principles.

Tariffs.

Gulati should not even have been a difficult case from an orthodox perspective. It seems that the crux of the difficulty Mann J faced was elsewhere. Counsels for the defendant (who admitted liability but disputed quantum) argued their case by reference to Vento, a wrongful discrimination case where the Court of Appeal had laid down guidance according to which damages for distress should only exceed £25,000 in ‘the most exceptional case[s]’.^[94] Of course this guidance was never binding on anyone, let alone in a privacy case; still, it is clear from the judgement that Mann J felt obligated to reason from it (if away from it).^[95] It becomes very easy, then, to suspect that arguing, as he did, that the Vento bands were for distress, but then there existed other forms of compensable harm, was a principled-looking way to reach the (much higher) quantum of damages he had in mind, without appearing openly to contradict guidance from a higher court on, if not the same, at least a related topic (damages for non-pecuniary loss in a dignitary tort).^[96] Once this was done, the appellate court was caught in a corner because, at that point, it had become true that, if heads other than emotional harm were to be discounted, the overall quantum of damages would need to be seriously reduced.^[97]

But it never had to be that way. If it is correct that the Vento cap is not simply not binding, but not even a helpful comparator for breach of privacy cases,^[98] then the High Court could have ignored it altogether. Instead, it appears to have allowed it to cast a shadow over the case at hand, to the effect that some of the (emotional) loss had to be recategorized under a different, normative, label to avoid the impression that the court was being overgenerous. This was both wrong as a matter of principle (being highly disruptive to the law of damages) and indeed unnecessary. There is no need to multiply heads of recovery to grant a high(er) quantum of damages.^[99]

Taking emotional harm seriously.

This leads to a more general point. As I have explored in greater depth elsewhere, it does not seem controversial to say that distress or emotional harm (taken here as synonyms, in the broadest possible sense of any unpleasant disruption of the claimant’s mental condition) is not understood very well, nor is it sufficiently recognized as a head of loss.^[100] Whatever we might say about its being a loss, and being compensable at least in many identified clusters of situations, if not indeed in an equally general way as pecuniary loss, we constantly to and fro between this and an older, narrower, model where only ‘real’, that is, pecuniary, loss matters.

This affects the question of normative damages in a very direct way. Clearly, those who defend their existence (or recognition) do not understand emotional harm well: if they did, they would realize that much of what they are trying to do is already being done, on the orthodox model, by factual losses once the full scope of these losses, including mental ones, has been taken into account. Thus, when they argue that Mr Ashby suffered no (factual) loss because his preferred candidate was elected,^[101] they plainly confuse factual loss with something narrower. Mr Ashby did evidently suffer emotional harm; as did the claimant in Huckle v. Money who supposedly was left ‘materially no worse off’ by the wrong (of false imprisonment) because he was ‘treated very civilly and fed beef-steaks and beer while detained’.^[102] Of course, all things being equal, he would have suffered less (emotionally) than if he had been mistreated and denied sustenance; but imagining that he would, on that account, not have suffered distress simply demonstrates that one does not understand the nature of distress (or, which comes to the same, does not take it seriously). Of course he would have suffered emotional harm—anger, humiliation, rage, fear, etc.—if he cared at all about his liberty.

This misconception is all the more puzzling because the argument for normative damages largely mirrors this point. At its heart stands the idea (shared by ‘vindicatorists’) that rights matter; and they matter independently of any factual loss that might be experienced when they are violated. To which the answer is: of course rights matter; that is the very reason why people are—ordinarily, and rightly—angered, humiliated, worried, revengeful, vexed, distressed, etc., when their rights are violated; which, in turn, is why they are entitled to—substantial—compensatory damages for their loss. If this point was understood (also taking into account, as mentioned, future emotional harm), the argument for normative damages would probably never have got off the ground.^[103]

5. Conclusion

Before the High Court of Australia, Mr Lewis claimed substantial damages, one of the proffered bases for which was compensation for an abstract loss of liberty which the ACT had, apart from any factual loss caused to him, occasioned by wrongfully imprisoning him (even though it had the authority to confine him rightfully). This claim for ‘normative damages’ was rejected, as was the alternative claim for—non-compensatory—vindicatory damages; accordingly, he recovered nominal damages only. The case thus reaffirmed an ancient orthodoxy: no—real, that is, factual—loss caused by the defendant, no substantial compensatory damages. However, Lewis did so in the most inauspicious circumstances, where most of the case revolved around analytically separate issues of causal counterfactuals; and the Court had to manoeuvre around a premise it might not have agreed with, namely, that the claimant was in fact wrongfully imprisoned (which seems incompatible with the reasoning deployed by the Court). While Lewis was mired in these difficulties regarding causation and the definition of false imprisonment, the result it reached was right: in the absence of factual loss caused by the defendant, no compensatory damages can be awarded, despite a right having ex hypothesi been injured. In other words, the abstract or normative loss inherent in the injury to the right, as distinct from its factual consequences, is not a proper object of compensation. There is no such thing as normative damages.

There is no such thing as a matter of historical rationality, the long-standing tradition these are meant to perpetuate having never existed. There is also no such thing as a matter of doctrinal analysis. To the extent that loss couched in abstract or normative terms really is abstract or normative loss (and not, as often, a shorthand for the concrete, factual consequences of the wrong—either actual or, in some cases, presumed or deemed), then it consists in the violation of the claimant’s right: in other words, it is the wrong itself. Yet, save for a few exceptions, very recent and incompatible with principle, English law has never granted damages for right injuries. What it grants (compensatory) damages for is their consequences, concrete or factual—albeit, importantly, the full extent of them: pecuniary and non-pecuniary; past, present and future. For the wrong itself, to the extent that it is actionable without more, what it grants is nominal damages marking the iniuria in the absence of any damnum.

Not only is it very difficult to see how substantial damages marking the iniuria apart from damnum (i.e. its consequences) could ever be valued, it is not clear in what sense they would compensate anything describable as a ‘loss’. In what sense is the writing-off of my car, the injury to my knee, or my forcible confinement a ‘loss’ apart from, and therefore additionally to, the fact that it will—typically—cost me money and/or cause me grief? Damages have never compensated for injuries, but for the extent to which claimants are affected by them (if in a broad sense, and in a way that is often standardized by neutralizing idiosyncrasies). The fact that oftentimes the first label is used, for convenience’s sake, as shorthand for the second changes nothing to this: wrongs are not losses; and compensatory damages compensate for losses—concrete consequences of the defendant’s conduct, hence factual losses—not for wrongs.

1. Lewis v. Australian Capital Territory [2018] ACTSC 19, (2018) 329 FLR 267. ↑

2. Lewis v. Australian Capital Territory [2019] ACTCA 16. ↑

3. Lumba v. Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 and subsequent line of cases; in Australia, see Fernando v. Commonwealth of Australia [2014] FCAFC 181; (2014) 231 FCR 251 and subsequent cases (special leave to appeal to the HCA was originally granted in Fernando but later revoked: [2015] HCA Trans 286). ↑

4. Appellant’s submissions in the case of Lewis v. ACT (Registry of the High Court of Australia, 5 December 2019) [37] (<https://cdn.hcourt.gov.au/assets/cases/03-Canberra/c14-2019/Lewis-ACT_App.pdf> accessed 1 January 2023). ↑

5. Lewis v. Australian Capital Territory [2020] HCA 26; 94 ALJR 740. ↑

6. For example, Robert Stevens, Torts and Rights (OUP 2007) 78 (‘we could say the loss is legal or normative whenever a right is infringed’). ↑

7. See below, s 3.B.(i). ↑

8. This paper restricts itself to tort damages. This is not meant to be read as implying that the principles are restricted to torts; subject to more detailed scrutiny, they would in fact seem to apply more generally. ↑

9. The distinction is further elaborated immediately below, s 2.B. ↑

10. The phrase has been used in this sense by, for example, Jason Varuhas, Damages and Human Rights (Hart 2016) 13; Andrew Bell, Damages for Non-Pecuniary Loss in the Tort of Negligence: A Reconceptualisation (PhD thesis, University of Birmingham, 2017) 98; Eric Descheemaeker, ‘The Standardisation of Tort Damages’ (2021) 84 MLR 2, 17. The idea of compensation for a non-factual loss is naturally much older (see below, s 3.B.), as is the phrase ‘normative damages’ itself, albeit without a fixed meaning. (Of course, the damages themselves always consist in hard cash: in that sense, they cannot be ‘normative’ any more than, for instance, ‘non-pecuniary’. In both cases, it is the loss being compensated that is.) ↑

11. Attorney General v. Blake [2001] 1 AC 268, 279; Stevens (n 6) 78. ↑

12. The difficult question is that of their relationship: see below, s 4.A. ↑

13. This term is preferred to ‘consequential on the wrong’, which is ambiguous. On the traditional view, consequential loss is a sub-section of (factual) loss, describing losses one step removed from the wrong, as opposed to direct losses. On this view, if for instance the claimant’s work car is damaged, the cost of repair counts as a direct/non-consequential loss, whereas the cost of hiring a substitute vehicle and the loss of earnings count as consequential. For someone like Stevens, on the other hand, consequential loss has the much broader meaning of loss ‘consequent upon the infringement of a right’ (Stevens (n 6) 23), which really is synonymous with factual loss. On this view, the cost of repair of the car is also ‘consequential’; indeed the only loss that would not be consequential would be the infringement itself: the abstract or normative injury to the property right. But then Stevens is left with the observable fact that a claimant cannot get an award for the infringement of his property right in the car (‘substitutive damages’ in his terminology) and also one for the repair of the car—the direct factual loss. Why this would be the case, however, is never explained (‘Where substitutive damages are recoverable and result in full compensation of loss, no further award should be made. The claimant cannot recover twice’ (at 61): why not?). ↑

14. This raises difficult issues of definition and distinction. A pecuniary loss would have to be a loss that is, not just valuable in money (because the law can value anything it wants in money) but directly so, in the sense that its valuation happens independently of the law, on the marketplace. A non-pecuniary loss would then be a loss (in the sense of a detriment for which the law is willing to grant compensation in money) which is not the loss of something that can be traded on the market, and which accordingly has to be valued ‘in-house’ by the law. A great array of labels can be used for such losses; but, to the extent that they are properly factual (as opposed to defined abstractly in terms of the setback to an interest), they will always boil down to some form of emotional harm—distress in the broadest possible sense of the term. ↑

15. James Edelman, McGregor on Damages (21st edn, Sweet & Maxwell 2021) §§2-001, 17-024; cf Lewis (n 5) [146]. ↑

16. This is common ground between scholars who do not think they are a proper object of compensation (e.g. McGregor (n 15) §17-024; Descheemaeker (n 10) 29) and those who do (e.g. Jason Varuhas, ‘Varieties of Damages for Breach of Privacy’, in Jason Varuhas and Nicole Moreham (eds), Remedies for Breach of Privacy (Hart 2018) 55, 57). ↑

17. It does not seem to make any difference whether the word is used in the singular or the plural. The claimant’s loss is the sum total of the detriments he can be compensated for on the basis of ordinary principles of liability. These detriments can be described, like any part of reality, at different levels of generality. Thus the claimant’s loss or losses can be divided into ‘pecuniary’ and ‘non-pecuniary’ loss(es), which themselves can be broken down into more specific elements. (In the same way, a normative loss could be described in more or less specific terms—for example, the ‘loss of the right to control the dissemination of information about oneself’ as one aspect of the ‘loss of privacy’). ↑

18. That factual loss may or may not flow from the wrong (i.e. that there is such a thing as a wrong without factual loss) is uncontroversial; however, it is not straightforward. That there might be situations where no pecuniary loss was suffered, or so small as to fall foul of the de minimis principle, is not difficult to accept. With non-pecuniary loss, on the other hand, this is more difficult. Almost invariably, some emotional harm will have been suffered, for the simple reason that it is difficult to imagine people not caring about the violation of their rights. This is all the truer because, ex hypothesi, the claimant is in court over his loss: this entails that he is aware of the infringement at that point (even if he had not been at the time) and that he cares enough to sue. In many of the situations where we tend to say that the claimant suffered no loss, he could easily have been regarded as having suffered, at least, some emotional harm. Still, it is possible to imagine such a scenario, for instance where a claim is brought by a representative on behalf of an unaware claimant (children privacy cases are the most common scenario, although in those cases it would not be absurd to say that the children will, or at least might, suffer an emotional harm when they find out later on, which loss is being compensated anticipatorily). ↑

19. Kit Barker, ‘Private and Public: The Mixed Concept of Vindication in Torts and Private Law’, in Stephen Pitel, Jason Neyers and Erika Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart, 2013) 59, 86; James Edelman ‘Vindicatory Damages’, in Kit Barker, Karen Fairweather and Ross Grantham (eds), Private Law in the 21^stCentury (Hart 2017) 343, 343; Jason Varuhas, ‘Lewis v. Australian Capital Territory: Valuing Freedom’ (2020) 42 Sydney L Rev 123, 136. ↑

20. Whether more money makes an award more ‘effective’ (within the meaning of Art. 13 ECHR – the ‘right to an effective remedy’) is however far from self-evident. French law has a concept of symbolic franc (now euro), which many across the Channel would argue is the most effective judicial victory: a pure matter of principle, without any lucre involved. ↑

21. See most recently AG of Trinidad and Tobago v. JM [2022] UKPC 54, [58] (Lord Burrows). ↑

22. The point was also made, rather tersely, by Edelman J in Lewis: ‘Mr Lewis’ submission that he is entitled to substantial damages independently of any consequences to him is not made any more compelling by the addition of the label “vindicatory damages”. This submission … amounted to the same point as his submission that substantial [compensatory] damages were available to vindicate a right, but with a different title’ (Lewis (n 5) [170]). The practical and indeed doctrinal overlap can easily be seen from the fact that cases like Ashby v. White, Plenty v. Dillon or The Mediana (below s 3.A.(i)) have been relied upon as authorities in favour of both types of awards despite these being, analytically, mutually exclusive—one being compensatory and the other not. (This ‘scattergun’ approach was confirmed by the fact that Mr Lewis originally claimed aggravated and exemplary damages as well. The one thing he did not claim was a gain-based award: he could, however, have used Weinrib’s argument that the Sentence Administration Board had made a normative gain at his expense, which should therefore be handed back to him.) ↑

23. Submissions (n 4) [24]: ‘An award of general damages to compensate for infringement of a common law right, regardless of whether any discernible “additional” loss can be identified, is well known to Anglo-Australian law’ (referencing Stevens (n 6) and immediately harking back to Ashby v. White). ↑

24. Lewis (n 5) [159]. More cases were cited in the written submissions. In his judgment, Edelman J also discussed Rees v. Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309, but this was used by counsels as authority for vindicatory damages; accordingly, it will be ignored here. ↑

25. One Step (Support) Ltd v. Morris-Garner [2018] UKSC 20, [2019] AC 649, 671. ↑

26. (1703) 2 Ld Raym 938, 92 ER 126. ↑

27. Submissions (n 4) [26]. Varuhas (n 19) 126 makes it a general proposition: ‘[n]ormative damage is inherent in the wrong’, although recoverability would, in his view, be limited to torts actionable per se. Stevens (n 6) 61 is more cautious: ‘[a]lthough [the Ashby principle] goes too far, for many rights it is correct’. ↑

28. Submissions (n 4) [26]. Counsels use the words ‘consequential loss’ but, in context—the phrasing being evidently borrowed from Stevens (n 6) 61—this has to mean loss of a concrete or factual nature. Crucially, however, they cut off the end of Stevens’ sentence: ‘except perhaps some bruised feelings’. Varuhas (n 19) 126 also omits this qualifier: ‘the candidate he would have voted for was elected, so that he was factually no worse off’. ↑

29. Ashby (n 26) 955/137. ↑

30. Ashby (n 26) 954/136. ↑

31. Hughes v. Gordon (1819) 1 Bli 287, 295; 4 ER 109, 113 (‘in solatium of the detriment arising from the loss of the pursuer’s vote and right of electing’). ↑

32. Ashby (n 26) 955/137. ↑

33. The HCA dismissed reliance on Ashby ([163]-[165]) but on the different basis that, for various reasons, Holt CJ’s words could not be relied on as an authority for the modern law. ↑

34. (1991) 171 CLR 635. ↑

35. Submissions (n 4) [27], quoting Plenty (n 34). ↑

36. Submissions (n 4) [29]; Plenty (n 34) [24]. ↑

37. An argument also made by Varuhas (n 19) 127: ‘substantial [compensatory] damages simply follow the wrong as a matter of course’. ↑

38. Plenty (n 34) [24]. ↑

39. Plenty (n 34) [24]. ↑

40. Lewis (n 5) [161]. ↑

41. As in Ashby, this shows a lack of understanding of non-pecuniary loss (interestingly, the trial judge’s position would seem to be the traditional Roman-French approach, whereby trespass is not actionable per se but might lead to compensatory damages if it causes ‘dommage’ under Art. 1240 Civil Code). ↑

42. ‘The appellant is entitled to have his right of property vindicated by a substantial award of damages’ (Plenty (n 34) [24]). ↑

43. Owners of the Steamship Mediana v. Owners of the Lightship Comet (‘The Mediana’) [1900] AC 113. ↑

44. Lewis (n 5) [167]; on the issue of standardization, see Descheemaeker (n 10) 7, 24. The idea is that it had cost money to keep the spare vessel, and this form of self-insurance should not benefit the wrongdoer any more than first-party insurance would. ↑

45. Lewis (n 5) [167], referring to Admiralty Commissioners v. SS Susquehanna [1926] AC 655, 662, 665-666, 669. ↑

46. The Mediana (n 43) 116. ↑

47. (1720) 1 Strange 425; 93 ER 612 (‘1d damages’). ↑

48. (1745) 2 Strange 1259; 93 ER 1167 (‘one penny damages’). ↑

49. (1770) 3 Wilson 118, 120; 95 ER 965, 967. ↑

50. (1615) 3 Bulstrode 74, 76; 81 ER 64, 65 (modernized English). ↑

51. Varuhas (n 19) 123. ↑

52. Varuhas (n 19) 132: ‘it is difficult to locate any case of a nominal award prior to Lumba’ (n 3). ↑

53. ‘[T]he venerable orthodoxy that substantial damages follow false imprisonment as of course’, according to Varuhas (n 10) 61. ↑

54. Murray v. Ministry of Defence [1988] 1 WLR 692, 703. The ‘normally’ refers to the scenarios, mentioned immediately before, where a defendant would have suffered consequential loss from the unlawful imprisonment despite not being aware of it: this, again, is perfectly consonant with principle. Admittedly the point was made obiter, but it was given very careful consideration by Lord Griffiths, speaking for a unanimous Court, in the context of a principled discussion as to whether false imprisonment should remain actionable per se (answer: yes; but absent ensuing loss only nominal damages will avail). Murray was applied by the Court of Appeal in R v. Bournewood Community and Mental Health NHS Trust [1998] 2 WLR 764, 778, where the claimant did receive nominal damages only. ↑

55. Deyo v. Van Valkenburgh (1843) 5 Hill 242, 245 (Supreme Court of New York), where the Court opined that a defendant who was arrested for debt by a sheriff who believed, but erroneously so (though without fault on his part), that the person was liable to such arrest might receive no more than ‘a mere nominal sum’. ↑

56. Eric Descheemaeker, ‘Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory’ in Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Hart 2013) 67, esp 83 n 82 (and references cited). ↑

57. See, for example, Savile v. Roberts (1698) 1 Lord Raymond 374, 381; 91 ER 1147, 1151 for both expressions. ↑

58. Thomas Aquinas, Summa Theologica (Wenssler 1485), Pt II.II, Q 61, Art 3. ↑

59. In England, libel as opposed to slander. In Australia, all forms of defamation are now actionable per se: Uniform Defamation Acts 2005 (e.g. Defamation Act 2005 (NSW), s 7). ↑

60. McGregor (n 15) §46-040. ↑

61. McGregor (n 15) §46-033. ↑

62. McGregor (n 15) §46-031. ↑

63. McGregor (n 15) §46-032. ↑

64. McGregor (n 15) §§46-036ff. ↑

65. Broome v. Cassell [1972] AC 1027, 1071. ↑

66. Gulati v. MGN Ltd [2015] EWHC 1482 (Ch), [2016] FSR 12, [111] (emphasis added). ↑

67. Gulati v. MGN Ltd [2015] EWCA Civ 1291, [2017] QB 149, [45] (Arden LJ, approved by the rest of the Court at [111]-[112]). ↑

68. Google LLC v. Lloyd [2021] 3 WLR 1268, [105] (necessarily obiter, misuse of private information not having been argued in the case; indeed the Supreme Court pointed out that Gulati was not being challenged in the instant appeal, possibly suggesting a willingness to reconsider the matter). ↑

69. Here it is difficult not to draw a parallel with vindicatory damages, which were also always regarded as a back-up mechanism, its never having been suggested by those who defended their existence that they should be awarded to mark all right-infringements (or even all serious ones). Mann J having considered that, as a matter of authority, vindicatory damages were no longer available in privacy actions (Gulati (n 66) [124]-[132]), normative damages could be used as a functional equivalent: by rephrasing the award in a compensatory manner, the prohibition against vindicatory awards could be sidestepped. Indeed, Mann J felt obliged to address the argument preemptively: ‘This conclusion is not to reintroduce vindicatory damages by the back door … Damages awarded to reflect the infringement are not vindicatory in the sense of Lumba. They are truly compensatory’ ([132]). ↑

70. Pt 3.C. below. ↑

71. Robert Stevens, ‘Rights and Other Things’, in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart 2012) 115, 121. ↑

72. Ernest Weinrib, The Idea of Private Law (OUP 1995, revised edn 2012) chs 3, 5; Aristotle, Nicomachean Ethics, V.4, 1132a9-10. The fact that heavy reliance is placed on Aristotle in Weinrib’s work should not be read as meaning that the concept of normative loss or gain has ancient roots in the law. Aristotle wrote as a philosopher not a lawyer, and the words he used in the passage relied upon by Weinrib, ζημία and κέρδος, are difficult to correlate with our modern notions of loss and gain. ζημία could equally refer to a penalty, and κέρδος has the general meaning of ‘advantage’: indeed Aristotle himself regarded it as ‘not strictly appropriate’ in certain cases (1132a11, tr Harris Rackham; cf Liddell & Scott who also note that Aristotle’s use of κέρδος was ‘metaphorical’ in that context). There is in any event no echo of any of this in Roman law. ↑

73. Weinrib (n 72) 115, 133 (‘Considered normatively, loss refers to the infringement of the claimant’s right, and gain to the breach of the defendant’s duty’). ↑

74. Weinrib (n 72) 116. ↑

75. Weinrib (n 72) 133. The claim triggered by the wrong, that is, the breach of duty, is described as being ‘for compensation of a factual loss’. The normative loss inherent in the right-infringement seems to be there only to be linked to a normative gain (the breach of duty): it is not clear what this adds to the proposition that D is liable to C because he breached a duty owed to him. ↑

76. Weinrib’s corresponding idea of normative gain has not been explored much, but it might help us see how strange the idea of a monetary award for the mere disruption of a legal relationship is. The suggestion that a wrongdoer has made a gain simply by virtue of breaching his duty is downright bizarre. He might have made a factual (financial) gain, but only contingently. If the defendant behaved in a high-handed manner, for the sake of harming the other party or his own gratification, we may also conceivably be willing to discern a sort of ‘non-pecuniary gain’; but the idea that even an innocent defendant would have made a gain at the expense of the other party is so counterintuitive and contrary to ordinary language as to be impossible to accept. ↑

77. One indicium among many is the number of references to his work in Torts and Rights, including the (highly symbolic) first footnote of the book. ↑

78. It is difficult to see how this conclusion can be avoided. Some people might prefer to argue that, for example, a breach of privacy causes a loss of privacy, inserting a distance between the two; but that cannot be right. Saying that one has taken away (some of) the defendant’s privacy is exactly the same proposition as saying that he has committed the wrong of breach of privacy. One commits the wrong by taking away the privacy (in circumstances regarded as wrongful by the law). The deprivation of privacy (i.e. the abstractly defined loss of privacy) is not a consequence of the wrong, it is an element of it. (This point is returned to in the context of false imprisonment, below, Pt 4.B.(i).) ↑

79. This difficulty is returned to below, Pt 4.B.(i). ↑

80. Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (16th edn, OUP 2022) 18 (‘in the region of £268,720’). There are no such guidelines in Australia; but extensive reliance on earlier case law plays a not dissimilar role in Australian law. ↑

81. Throughout the Guidelines, the price tags are attached to a physical injury, that is, a particular setback to the interest in physical integrity. But the Guidelines themselves refer to these awards of general damages as damages for ‘pain and suffering and loss of amenities’ (‘PSLA’): see, for example, Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (12th edn, OUP 2013) ix. ↑

82. The distinction features very prominently in Varuhas (n 10) ch 2. ↑

83. For authority that the measure of damages does not depend on the cause of action used but on the type of right violated, see, for example, McGregor (n 15) §§37-001, 38-001, 38-084, 38-085, 39-001 and 40-001. ↑

84. Lewis (n 5) [157]. ↑

85. Stevens (n 71) 126-7. ↑

86. Another way of perceiving the same point is to ask how a claim like Mr Lewis’ would play out in ‘ordinary’ circumstances. It is hard to believe that his counsels would have even contemplated the argument they made had he causally suffered the (emotional) harm ordinarily associated with unlawful detention (i.e. had it not been for the counterfactual issue). But surely, if Mr Lewis suffers a normative loss by virtue of having been wrongfully imprisoned, then he suffers it in all cases, including when he does also suffer (normal) factual loss as a result. If normative damages are available, they should be available across the board. The fact that the argument for normative damages is invariably, if often implicitly, restricted to the ab-normal circumstances where the claimant has not suffered the ‘normal’ quantum of (factual) loss—what Mann J called ‘appropriate cases’ (above, n 61)—gives away the fact that it is regarded as a back-up mechanism: a second shot at the ordinary quantum of damages. ↑

87. Lewis (n 1) [388]. ↑

88. Submissions (n 4) [12]. ↑

89. Crimes (Sentence Administration) Act 2005 (ACT) s 69. Note that it is sufficient for the argument that the Board had a power to cancel the periodic order (it was never suggested that Mr Lewis might not have failed to report on at least two occasions without being excused); although in that case it had in fact a duty to do so, since it could only have approved retroactively up to eight absences (on the basis of health or ‘any exceptional circumstances’), a number which had undisputedly been exceeded. ↑

90. Lord Phillips and Lord Brown (with whom Lord Rodger agreed) are those who, on this reading, got it right in the materially identical case of Lumba. Lord Brown, in particular, was right to suggest that the majority’s view was marked by the intrusion of public law considerations into private law reasoning: ‘Classically most public law challenges go to the decision-making process rather than to the substance of the decision taken … It simply does not follow from a flawed decision-making process that the detainee’s continued detention immediately thereupon becomes unlawful’ (Lumba (n 3) [357]). Even if we accepted that a decision reached in a flawed manner should be void, we would be back to causation issues: a new decision would need to be reached, which would validly imprison Mr Lewis (unless it was again unlawful, in which case there should be a third one, etc.). ↑

91. An interesting—albeit moot—question is what loss, if any, the procedural wrong caused him. Not the loss of liberty (and/or ensuing emotional harm), for the reasons explained above; but arguably the emotional harm flowing from the knowledge that his right to be treated according to the procedures of the law was violated. We might see this injury as a form of disrespect: he was treated as if he and his liberty did not matter. This indeed might be what the Irish Court of Appeal was after in the case of GE v. Commissioner of an Garda Siochana [2021] IECA 113, [147] when it upheld an award of substantial compensatory damages despite the same counterfactual as in Lumba or Lewis (i.e. unlawful detention albeit that lawful detention would have occurred otherwise), holding that ‘compensatory damages for false imprisonment’ are not ‘merely for loss of liberty’ but also for ‘the insult caused by th[e] illegality’. This does seem to reflect the true gravamen of the defendant’s conduct. But, again, this is not false imprisonment; it is a different wrong. ↑

92. It might be retorted that it would be very unfortunate, from the perspective of the rule of law, to hold that the public authorities did not commit a wrong when they acted wrongly. But this misses the point. It is the right answer because it is what both logic and precedent dictate. This leaves entirely open the question of how to deal with the actual (procedural) wrong. There could, and arguably should, be—severe—consequences for such conduct (whether in tort, under criminal law or as an internal disciplinary matter); but not through false imprisonment. Here it is important to note that, even assuming substantial damages—whether compensatory for factual loss, compensatory for normative loss, or vindicatory—the consequences of a finding of wrongful imprisonment are in fact extremely mild in the broader scheme of things: a little money, that will not even be paid by the actual wrongdoers. Public officials misbehave and the taxpayer pays: it is not clear what has been achieved in terms of the ‘rule of law’. ↑

93. This point is returned to immediately below (‘taking emotional harm seriously’). ↑

94. Vento v. Chief Constable of West Yorkshire Police [2003] ICR 318 [65]. Aggravated damages would come on top of this. ↑

95. It took him no fewer than 15 paragraphs to explain why he did not have to apply the bands in Vento (Gulati (n 66) [185]-[199]). ↑

96. This, indeed, would be a natural reading of [190] of Gulati (n 66): ‘I do not consider that this [i.e. Vento’s] approach is correct … [T]he hypothesis from which it gets its primary significance in this case is false—it is not right that damages can only be claimed for distress (or the equivalent to ’injury to feelings’ in Vento). I have dealt with this point above. An award for infringement of privacy rights is capable of including other elements, and when those are added in the idea of a scale, let alone the Vento scales, becomes inappropriate’. However, it is very clear that Vento never envisioned that the discriminated claimant could also recover, on top of distress, damages for the loss of the right not to be discriminated against, that is, for the discrimination itself. ↑

97. Gulati (n 67) [45]: damages would have to be ‘much reduced’ if only emotional harm was recoverable. ↑

98. As indeed highlighted by Mann J (Gulati (n 66) [193]). ↑

99. That the concern is an insufficient quantum of damages in at least some cases was admitted by the Court itself: ‘In my view a regime in which damages were confined to damages for distress would render the rights (to a degree) ’illusory’ (to use the word used by the ECHR) and would, to a degree, fail to provide an effective remedy’ (Gulati (n 66) [111]). But this argument only works if effectivity is in proportion of quantum, and distress damages are bound to be of low(ish) quantum overall, neither of which appears to be true. ↑

100. Eric Descheemaeker, ‘Rationalising Recovery for Emotional Harm in Tort Law’ (2018) 134 LQR 602. ↑

101. Above, n 23. ↑

102. Varuhas (n 19) 129. For the author, ‘material’ is synonymous with ‘factual’. ↑

103. It is hard not to suspect that one attraction of abstractly defined losses is that they allow us (seemingly) to escape the messiness of human life. Describing a loss as a ‘loss of the right to control information’ is much more sanitized than describing it as the claimant’s sense of violation at having seen intimate information splashed in front of others—even though they are the flipside one of the other. Contrary to popular opinion, abstractions are in fact much easier to deal with than ‘concretizations’. ↑