ABSTRACT
This article examines recent developments in the common law of the United Kingdom and Australia on the counterfactual approach used in false imprisonment actions to assess whether there has been loss for the purpose of awarding compensatory damages. This counterfactual approach, we argue, introduces an assumption of legality contrary to a conventional counterfactual analysis, and so it disrupts both the doctrinal coherence of conventional counterfactual principles and the structural coherence of the law of torts as an instantiation of corrective justice. The article advances an alternative counterfactual framework, consistent with principles of corrective justice and legal coherence, for identifying whether the violation of claimants’ right to liberty in such cases has legal value that gives rise to loss for the purpose of a compensatory damages award.
Sharon Erbacher and Jason Taliadoros, Making Assumptions: Reviewing the Counterfactual Approach to Damages Assessment in the Tort of False Imprisonment (2025) 48(3) Melbourne University Law Review.
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