Abstract:
The underlying basis of an award of damages according to the user principle is the subject of intense and heated debate. The main debate concerns whether such awards are compensatory or restitutionary. Whilst more complex theories exist including mixed compensatory/restitutionary accounts, it is proposed that at the heart of the debate lies a dispute over the law’s conception of gain and loss. Should gains and losses be narrowly or broadly conceived? It is suggested that the cases are only consistent with a broad conception of both since some cases would be inexplicable on a narrow conception of the same. If this is correct, then the restitutionary analysis, whilst theoretically plausible, would be practically unappealing to plaintiffs since on this basis, claims would be subject to defences not available to the same claim analysed purely in compensatory terms. Accordingly, it is difficult to imagine that a plaintiff would ever plead its case purely in restitutionary terms.