‘Compensating Distress With A Stiff Upper Lip’

Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 Law Quarterly Review 602 (2018). Tort compensation is often said to be governed by the make-whole principle – damages should compensate the successful plaintiff for all the losses she suffered as a result of the tort. Even if there is such a principle, it seems to have exceptions. In Rationalising Recovery for Emotional Harm in Tort Law, Eric Descheemaeker focuses on an apparent exception that applies to suits for interferences with possessory rights. For example, in standard cases of conversion, the plaintiff is not entitled to recover compensation for emotional distress caused by the wrongful interference with her property rights. Examining English authorities, Descheemaeker offers a surprising result. Although courts purport to disallow distress damages in these cases, they actually do allow them. English tort law is more principled in hewing to the make-whole ideal than it appears to be … (more)

[John CP Goldberg, JOTWELL, 21 November]

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