Kinds of Damages
Chapter Sixty-Six
Syllabus topic 3.4, "Judicial and Extra Judicial Remedies."
Pages 267 to 270 of 434
In one line
Damages may be nominal, contemptuous, ordinary, aggravated or exemplary, and only the last is meant to punish.
In the wording a student can write in an exam: nominal damages are a token sum awarded where a legal right has been infringed without loss; contemptuous damages are a derisory sum awarded where the claim, though technically good, ought not to have been brought; ordinary or compensatory damages are measured by the plaintiff's actual loss; aggravated damages are compensatory but increased because the defendant's conduct injured the plaintiff's feelings or dignity; and exemplary or punitive damages exceed the loss and are awarded to punish and deter.
The five kinds
1. Nominal damages. A small sum marking the violation of a right where no real loss followed. They are the natural award in a case of injuria sine damno, and chapter [Injuria Sine Damno] shows why the action lies at all.
2. Contemptuous damages. A derisory sum, often the smallest coin, awarded where the plaintiff has technically established his claim but the court considers the suit unworthy. The message is that the plaintiff won and should not have come. Costs are often refused as well.
3. Ordinary or compensatory damages. The general case: the sum that represents the plaintiff's loss, assessed on the principles in chapter [Judicial Remedies: Damages].
4. Aggravated damages. Still compensatory, but increased because the manner of the wrong added to the injury: insult, humiliation, malice, or a high-handed way of doing it. They compensate injured feelings rather than punish.
5. Exemplary or punitive damages. A sum beyond compensation, awarded to punish the defendant and to deter him and others. They are exceptional, and the classes in which they are given are narrow: oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated by the defendant to make a profit exceeding the compensation payable to the plaintiff; and cases where a statute authorises them.
The Indian departure: the size of the defendant enters the calculation
Facts. M.C. Mehta v. Union of India, AIR 1987 SC 1086, decided on 20 December 1986 by five judges. Oleum gas escaped from a unit of Shriram Foods and Fertiliser Industries in a densely populated part of Delhi, and the Court had to fix the measure of liability of an enterprise carrying on a hazardous industry.
Held. Besides laying down absolute liability, the Court held that the measure of compensation must be correlated to the magnitude and capacity of the enterprise, because the compensation must have a deterrent effect: the larger and more prosperous the enterprise, the greater the amount payable. It reasoned that an enterprise permitted to carry on a hazardous activity for profit must absorb the cost of accidents as an item of its overheads.
Kinds of Damages
Why it matters here. It is a departure from restitutio in integrum, since the award is no longer measured only by the plaintiff's loss, and it is the Indian answer to the question whether damages may deter.
Compensation for harassment, and where it goes
Facts. Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, decided on 5 November 1993. Allottees complained of delay, non-completion and defective construction by statutory development authorities.
Held. A Commission may award compensation for harassment, mental agony and oppression by a public functionary, on a finding recorded carefully and not lightly, and where it is paid out of public funds the department must recover it from the officers responsible; in one appeal the Rs. 10,000 awarded was directed to be recovered from the officers' salary.
Why it matters here. It is an Indian example of an award that is compensatory in form and deterrent in operation, and it shows the statutory route: section 39 of the Consumer Protection Act 2019 empowers a Commission to order compensation, and section 89 provides a penalty for a false or misleading advertisement, which is punitive and payable to the State rather than to the consumer.
The distinctions in one table
| Kind | Purpose | Amount | Typical case |
|---|---|---|---|
| Nominal | To mark a right | Token | Trespass causing no damage; injuria sine damno |
| Contemptuous | To mark disapproval of the suit | Derisory | A technically good claim that should not have been brought |
| Ordinary | To compensate | The loss | Most cases |
| Aggravated | To compensate for injured feelings | The loss, increased | Insulting or high-handed conduct |
| Exemplary | To punish and deter | Beyond the loss | Oppressive government action; profit-seeking wrongdoing; statutory authority |
A worked example
Four plaintiffs, four awards.
A neighbour walks across a lawn every day and damages nothing. Trespass is actionable per se; the award is nominal.
A man sues a newspaper for calling him "unpunctual", and the court finds the word technically defamatory but the suit trivial. Contemptuous damages, and probably no costs.
A patient loses the use of a hand through negligent surgery. Ordinary damages: medical expenses, lost earnings, and general damages for pain and loss of amenities.
A woman is wrongfully detained by a shop's staff in front of a crowd and accused of theft. Aggravated damages, because the humiliation added to the injury.
Police officers detain a man for four days without producing him before a magistrate, deliberately and mala fide. This is the classic case for exemplary damages against servants of the government, and in India the Supreme Court reached the same result through the constitutional remedy: Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494, awarded Rs. 50,000 although he was already free.
Kinds of Damages
What it does NOT mean
Nominal damages do not mean a weak case. They mean no loss, not no wrong.
Aggravated damages are not punitive. They compensate injured feelings.
Exemplary damages are not available at large. The categories are narrow.
The Indian rule in M.C. Mehta is not a general licence to inflate awards. It applies to an enterprise carrying on a hazardous or inherently dangerous activity.
Quick revision
- Five kinds: nominal, contemptuous, ordinary or compensatory, aggravated, and exemplary or punitive.
- Nominal: a token marking a right, the award in injuria sine damno.
- Contemptuous: derisory, marking disapproval of the suit; costs often refused.
- Aggravated: compensatory, increased for insult, humiliation or high-handedness.
- Exemplary: beyond compensation, to punish and deter; the categories are oppressive government action, profit-seeking wrongdoing, and statutory authorisation.
- M.C. Mehta v. Union of India, AIR 1987 SC 1086: compensation from a hazardous enterprise must be correlated to its magnitude and capacity, so as to deter.
- Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787: compensation for harassment by a public authority, recovered from the officers responsible.
- Section 39 of the Consumer Protection Act 2019 for compensation; section 89 for the penalty for a misleading advertisement.
Test yourself
1. Explain the kinds of damages awarded in tort. Five. Nominal damages are a token sum awarded where a legal right has been infringed but no loss has followed, and they are the natural award in a case of injuria sine damno, such as a trespass that damages nothing. Contemptuous damages are a derisory sum awarded where the plaintiff has technically made out his claim but the court thinks the suit should never have been brought, and costs are often refused as well. Ordinary or compensatory damages represent the plaintiff's actual loss and are the general case. Aggravated damages are compensatory but increased because the manner of the wrong, its insult, malice or high-handedness, added to the plaintiff's injury. Exemplary or punitive damages go beyond compensation and are awarded to punish and deter, in narrow categories: oppressive, arbitrary or unconstitutional action by government servants; conduct calculated to yield the defendant a profit exceeding the compensation payable; and cases in which a statute authorises them.
2. Distinguish aggravated damages from exemplary damages. Aggravated damages remain compensatory. They are awarded because the plaintiff suffered more than the bare wrong would ordinarily cause, the additional element being injury to feelings, dignity or pride arising from the way the defendant behaved. Exemplary damages are not compensatory at all: they exceed the plaintiff's loss and are imposed to punish the defendant and to deter him and others, so they resemble a fine paid to the plaintiff. The consequences of the distinction are practical. Aggravated damages may be awarded in any case where the manner of the wrong aggravated the harm; exemplary damages are confined to the recognised categories, and a court will not award them merely because it disapproves of the defendant.
Kinds of Damages
3. Has Indian law departed from the compensatory measure? Yes, in one important class of case. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court held that the compensation payable by an enterprise carrying on a hazardous or inherently dangerous activity must be correlated to the magnitude and capacity of the enterprise, because it must have a deterrent effect, so that the larger and more prosperous the enterprise the greater the sum. That is a departure from restitutio in integrum, since the award is no longer fixed only by the plaintiff's loss. The reasoning was that an enterprise permitted to carry on such an activity for profit must absorb the cost of accidents as an overhead. A second Indian development points the same way: Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787, allows compensation for harassment by a public authority and directs that it be recovered from the officers responsible, which is compensatory in form and deterrent in operation.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.