Damages


1. The main purpose of damages is to compensate the plaintiff for the loss he has suffered.

2. Assessment
a) General: Value of goods, cost of repair, loss of earnings (lump sum once and for all the future).
b) Personal injuries: The court may initially award a sum on the assumption the disease will not develop and may award further damages if it does (Administration of Justice Act (1982).

3. Classification
a) General and special
aa) General damages are damages at large which are not susceptible to exact calculation (loss of a limb).
bb) Special damages are exactly calculable and must be specifically set out in the pleadings.
b) Nominal and substantial
aa) Nominal damages are awarded where the plaintiff's rights are infinged, but he's not able to prove actual damage.
They are only available in per-se torts, i.e. trespass to land where the plaintiff wants 'his day in court' rather than money compensation.
bb) Substantial damages are assessed by reference to the actual loss, whether physical or non physical. They must be proven in all actions on the case (i.e. negligence).
c) Compensatory and aggravated
aa) Compensatory damages are supposed to make up the loss itself.
bb) Aggravated damages are awarded were compensation is not enough to satisfy the plaintiff. They are aimed at punishing the defendant rather than at compensating (also called 'examplary', 'punitive', 'vindicative').
Rookes v. Barnard 1964 - intimidating an employer to lay off a non-union worker.
Bisney v. Swanston 1972 - a truckdriver spitefully causing a nuisance.
John v. Mirror Group Newspapers 1993 - Elton John alleged of having thrown up at a party.
Constantine v. Imperial Hotels 1944 - black man denied check-in at a hotel for his colour.
(1) They are also awarded where the plaintiff has been injured by arbitrary action of government servants:
General Warrants, Wilkes v. Wood 1763 - 'great constitutional case'.
Connor v. Chief Constable of Cambridgeshire 1984 - police attacking a man for no reason.
But no such claim lies in public nuisance:
A. B. v. South West Water Board 1993
(2) And, they are awarded where the defendant seeks to make a profit that would exceede any compensation which he would have to pay were he only responsible for compensatory damages:
Cassel v. Broom 1974 - false stories published in a book.
Drane v. Evangelou 1978 - landlord unlawfully throwing out tenant.

4. Remoteness
a) The old rule: Direct consequence.
Re Polemis and Furness Witty & Co. 1921 - a plank falling near a ship which had leaded oil; explosion.
The defendant was thus responsible for:
aa) all intended consequences, whether direct or indirect;
bb) all direct consequences, whether or not they were reasonably foreseeable.
cc) He was not liable if there was independent interference of either the plaintiff or some third party or an Act of God.
b) The new rule: Reasonable foreseeability.
It started with
Liesbosch Dredger v. Steamship Edison 1933 - plaintiff was poor and couldn't afford a new dredger, so the damage multiplied due to the costs for hiring another one.
Leading case is, howerver:
Overseas Tankship (UK) Ltd. v. Mort's Dock and Engineering Co. Ltd. (The Wagon Mound (No.1)) 1961 (Privy Council) - a furnace of oil floating on water was set alight, this could not reasonably be expected. Direct consequence is not important.
aa) In tort, the defendant will be liable for results which are by no means probable, but nevertheless 'on the cards'.
bb) The rule was intentionally applied to negligence case, but is has been extended to nuisance in:
Overseas Tankship (UK) Ltd. v. Miller SS Co. Pty. Ltd. (The Wagon Mound (No.2)) 1967 (Privy Council)
Then it was extended to cases under the rule in Rylands. v. Fletcher:
Cambridge Water Co. Ltd. v. Eastern Counties Leather plc. 1994
The Court of Appeal held that it was does apply to the tort of deceit (fraud).
cc) If the injury eventually ensuing is caused unforeseeably, but similar in 'type' to the injury foreseeably caused, the defendant will be liable nevertheless (as in contract):
Smith v. Leech Braine & Co. Ltd. 1962 - a slight burn on the lip was, so the courts chose to think, similar in 'type' to lethal cancer which developed from it.
c) The latest: Egg shell skull rule: 'If you can foresee any illness, you have to foresee to psychological damage, too'.
Brice v. Brown 1984 - mother imagined accident while driving in a taxi and suffered a nervous shock.
Page v. Smith 1995 - car accident, pre-existing disease (M.E.) got worse then, psychological damage.

5. Deduction of benefits caused by the injuries
a) Social security and industrial injury benefits received must be deducted.
b) Taxes to be paid on lost (also: future) earnings must be deducted.