The Standardisation of Tort Damages

Abstract

This article explores the nature, scope, rationale and merits of the standardisation of compensatory damages in tort law, ie the fact of giving the claimant not the value (subject to ordinary limiting principles) of his own loss, but that of the loss which an ordinary claimant placed in the same circumstances would have suffered. Standardisation happens in respect of pecuniary and non-pecuniary losses, direct and consequential losses, and also normative losses. Its two main spurs are either that the orthodox award would not give the desired result—typically ‘too little’ damages—or that it runs into evidentiary difficulties, which the award of a typical sum overrides. While epistemic standard..