Tort law (2022): Damages (Part One)

At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.

Compensatory damages are further categorized into special damages, which are economic losses such as loss of earnings, property damage and medical expenses, and general damages, which are non-economic damages such as pain and suffering and emotional distress. Rather than being compensatory, at common law damages may instead be nominal, contemptuous or exemplary.

History.

Among the Saxons, a monetary value called a weregild was assigned to every human being and every piece of property in the Salic Code. If property was stolen or someone was injured or killed, the guilty person had to pay the weregild as restitution to the victim's family or to the owner of the property.

Proof of damages.

Proximate cause.

Recovery of damages by a plaintiff in a lawsuit is subject to the legal principle that damages must be approximately caused by the wrongful conduct of the defendant. This is known as the principle of proximate cause. This principle governs the recovery of all compensatory damages, whether the underlying claim is based on contract, tort, or both. Damages are likely to be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by their actions, there may be no liability.

This rule does not usually apply to intentional torts (for example, tort of deceit), and also has stunted applicability to the quantum in negligence where the maxim 'Intended consequences are never too remote' applies: 'never' is inaccurate here but resorts to unforeseeable direct and natural consequences of an act.

Expert testimony.

It may be useful for the lawyers, the plaintiff and or the defendant to employ forensic accountants or someone trained in the relevant field of economics to give evidence on the value of the loss. In this case, they may be called upon to give opinion evidence as an expert witness.