Report comment

Sumption is keen on history so he will know that the concept of compensatory damages, i.e. damages that put the injury party back in the position he/she would have been in, had the negligence not occurred, is not a new one.

The Romans called it restitutio in integrum. The first recorded case of this kind in a Roman court was 59 B.C.

Even in the so called Dark Ages, a system of compensatory damages was present in the first English law code, issued by King Æthelberht, King of Kent, in about 602 CE. It set out a detailed set of fines and compensation. If, for example, a freeman was found to have committed adultery he would be required to pay the injured party a ‘wergeld’ – the value of the injured party’s life. He would also have to ‘provide another wife with his own money, and bring her to the other.’ More prosaically: loss of an eye required payment of fifty shillings compensation; loss of a thumb, twenty shillings; and loss of the shooting finger – the one needed to use a bow and arrow effectively – eight shillings. If you cut someone’s ear off you were required to pay compensation of twelve shillings If you merely mutilated it, you would only have to pay six shillings.

If, however, you cut the ear off and your victim was deaf in the other ear, you would have to pay twenty-five shillings. Compensation was proportionate to the harm; a requirement that was later echoed in Magna Carta’s treatment of criminal offences: it required punishments to fit the crime – to be proportionate to the offence.

When one considers the above, the suggestion that our justice system is progressing along a linear timeline is clearly false.