This article provides a brief introduction to the common law of damages and explains how damages are categorized and calculated in a civil action.
Damages are money awarded by the common law courts for civil wrongs. In both contract and tort law damages are the courts calculation of what it would cost to put the Plaintiff back into the position he/she would have been in but for the wrong. In contract law this amounts to the value that has been lost due to the breach of the contract. In tort law damages are more difficult to assess but generally are taken to represent the monetary value of what the Plaintiff has lost in terms of damages to property, personal injuries, and quality of life.
In order to provide a more objective account of the damages suffered by Plaintiffs the courts have broken damages into several headings that are assessed independently and then added together to give a complete award.
In contract law liability is strict which means that once a breach is proven, damages are presumed. The courts will look at the economic losses to the Plaintiff including loss of future profits and loss of opportunity. Furthermore the court can define assets of the Defendant being held by the Plaintiff as being liquidated damages which means that those assets form part of the award granted by the court and become the property of the Plaintiff.
In tort law, damages are divided into special (pecuniary) and general (non-pecuniary) categories. General damages are typically referred to as damages for pain and suffering but may also include loss of companionship, reputation, and life expectancy. In some jurisdictions non-pecuniary damages have been ‘capped’ in order to avoid the astronomical awards that have arisen elsewhere. The ‘cap’ is an arbitrary amount chosen by the court as full compensation under the rationale that no amount can truly compensate Plaintiffs for catastrophic injuries and there should be a fair and constant top level amount for all Plaintiffs that suffer such injuries.
Special damages are the out of pocket expenses that the Defendant incurs as a result of having to deal with the injuries or property loss caused by the Plaintiff. These damages typically include medical expenses, car rentals, lost wages and repair costs.
In rare cases the courts may also award punitive or aggravated damages against a Defendant whose conduct is so far beyond the societal norm for proper behavior that the court feels justified in punishing the Defendant over and above the compensation to the Plaintiff. Depending on the jurisdiction there can also be statutory damages which are damages that are made obligatory in certain situations such as an award against a landlord doubling the damage deposit amount if it is not returned to a tenant in the required time period.
At their root damages are meant to be compensatory and every case should be analyzed in that light. In tort law, where a tort is proven but no real harm has been suffered the courts are free to award nominal damages such as $1.00. If the Plaintiff is pursuing the matter on principle it may not matter to him/her whether they are awarded damages at the end of the action. However, given the cost of litigation such a case will be rare and before anyone gets near a court house to start an action they should talk with a lawyer to determine what similar claims have been awarded in the past.
This article is legal commentary only and should not be taken as legal advice. Consult a lawyer in your area with any particular legal questions that you may have.
