Damages and Human Rights
A new book by Melbourne Law School Associate Professor Jason N E Varuhas aims to fundamentally reshape thinking on how courts ought to approach the award of damages for breaches of basic rights.
Damages and Human Rights (Hart Publishing) is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike.
Damages for breaches of bills of rights is emerging as a field of great practical significance, yet the rules and principles governing such awards and their theoretical foundations remain under-explored, while courts continue to struggle to articulate a coherent law of human rights damages. One of the key reasons the subject has proven a difficult one for courts is that it lies at the intersection of public law, private law, and international law, not being capable of neat compartmentalisation within any one field.
Professor David Feldman, Rouse Ball Professor of English Law, University of Cambridge, in the foreword to the book, says Damages and Human Rights “will quickly become the standard point of reference in its field”.
“It is a pleasure to congratulate Dr Varuhas on this sustained, intellectually powerful and practically important piece of legal scholarship, and to commend it to the many readers, in many parts of the world, where it will, I hope, stimulate new approaches to the practice and theory of the subject”.
The book’s focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.
It argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated, and eschew prevailing approaches which are generally characterised by open-ended judicial discretion and a paucity of concrete rules and principles.
Other approaches are considered in detail, including the current “mirror” approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law.
The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration.
A number of events have been organised in different common law jurisdictions to mark the publication of this significant work (in date order):
Canada: Book panel at Université of Montreal Faculté de Droit, 26 May 2016. Speakers: Professor Brice Dickson, (Queen’s University Belfast), Mr James Lee (King’s College London), Dr Paul Daly (Montreal).
New Zealand: Book panel at Victoria University of Wellington Law Faculty of Law, 1 June 2016. Speakers: Hon Justice Matthew Palmer (New Zealand High Court), Professor Claudia Geiringer (Victoria University of Wellington), Mr Chris Curran (Partner, Russell McVeagh). Click here for more information.
Australia: Book launch at Melbourne Law School, 3 August 2016. Speakers: Hon Justice Stephen Gageler (High Court of Australia), Professor Cheryl Saunders (University of Melbourne).
United Kingdom: Book panel at the Society of Legal Scholars Annual Conference (Public Law Section), University of Oxford, 6-9 September 2016. Speakers: Professor Robert Stevens (Oxford), Professor Carol Harlow (LSE), Professor Christopher Forsyth (Cambridge). Click here for more information.