Judicial Remedies: Damages

In one line

Damages are money awarded to put the injured person, so far as money can, in the position he would have been in if the wrong had not happened.

In the wording a student can write in an exam: damages are the principal judicial remedy in tort, and the governing principle is restitutio in integrum, restoration to the original position so far as money can achieve it; damages are unliquidated, that is, assessed by the court and not fixed in advance; they are classified as nominal, contemptuous, ordinary or compensatory, aggravated and exemplary; and they are divided for pleading into special damages, which must be specifically pleaded and proved, and general damages, which the law presumes.

The governing principle

Restitutio in integrum means restoration to the original position. The court asks what the plaintiff has lost and awards a sum that represents it.

The principle is a ceiling as well as a floor. The plaintiff is not to profit from the wrong, so a claimant whose damaged car is replaced with a new one gives credit for the improvement, and a claimant who has been paid by an insurer does not recover twice.

Special and general damages

Special damages are the items of loss that can be calculated exactly at the date of the suit: medical bills, the cost of repairs, wages actually lost. They must be specifically pleaded and strictly proved.

General damages are the items the law presumes and the court estimates: pain and suffering, loss of amenities, loss of future earnings, injury to reputation. They need not be pleaded item by item.

Do not confuse "special damages" in this sense with the "special damage" a plaintiff must prove in slander and in public nuisance, which means damage particular to him. The same words carry two different meanings, and chapters [Libel and Slander] and [Public Nuisance] use the second.

How a court arrives at a figure

For damage to property, the cost of repair, or the diminution in value where repair is impossible, plus consequential loss such as the cost of hiring a replacement.

For personal injury, the medical expenses actually and prospectively incurred, the loss of earnings to date, the loss of future earning capacity, and general damages for pain, suffering and loss of amenities.

For death, the dependency, that is, what the dependants have lost, plus conventional heads. Chapter [Computing Just Compensation] works out the multiplier method the Motor Vehicles Act cases use.

In statutory claims, the statute may direct the exercise. Section 168 of the Motor Vehicles Act 1988 requires the Claims Tribunal to hold an inquiry and make an award determining the amount of compensation which appears to it to be just, and section 39 of the Consumer Protection Act 2019 lists the reliefs a Consumer Commission may order, including compensation for loss or injury suffered by a consumer due to the negligence of the opposite party.