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Damage and damages: Real and nominal damages
Damage is actual injury or loss. Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. Damages recoverable in a tortious action may be either nominal or real. Nominal damages are a small sum of money awarded by way of recognition of the existence of some legal right vested in the plaintiff and the violation of it by the defendant. Real damages are those which are assessed and awarded as compensation for damage actually suffered by the plaintiff. All cases of injuria sine damno fall under this head. For trespass and other torts which are actionable per se nominal damage will at least be awarded.
In fixing the sum to be given as damages the court should get at that sum of money which will put the party who has been injured in the same position as he would have been in if he had not sustained the wrong for which he is getting compensation, known as the doctrine of restitutio in integrum. If A has damaged by his negligent driving B's Morris car, which cost B ₹ 50,000, A will be compelled to pay ₹ 50,000 or less the value of depreciation so as to enable B to purchase another car of the same type and model. But in many cases the amount of compensation granted by the court will not be exactly the same as required to replace the plaintiff' loss. The court may award the plaintiff an amount which it thinks is a fair and adequate compensation for the plaintiff's injury. In such cases it is purely compensation and not restitution. In other exceptional cases such as the loss of a historic mansion or an ancient portrait by the negligent acts of the defendants, the loss could not be measured by the value of the bricks of the mansion or of the colour and canvas of the portrait. In such cases courts will grant a much more higher sum than that represented by the value of the materials to compensation the plaintiff.
Measure of damages
A claimant cannot recover more by way of damages than the amount of his loss. The object of an award of damages is to place the injured party as nearly as possible in the same financial position as he would have been in but for the injury. It has been held in two English decisions that when assessing damages in actions for personal injuries or wrongful dismissal, for the loss of actual or prospective earnings, allowance must be made for any incidence of income tax (including surtax). It was so held by the House of Lords in British Transport Commission v. Gourley.
General and special, pecuniary and non-pecuniary damages
Courts very often award damages of two types, viz., general and special. General damages are compensation for general damage; special damages for special damage. This distinction arises more out of the burden of proof of the parties in the conduct of the case. General damage is that kind of damage which the law presumes to follow from the wrong complained of and which therefore need not be specifically mentioned in the plaintiff's pleadings. Special damage, on the other hand, is damage of such a kind that it will not be presumed by the law, but must be specially set out and proved by the party who claims it. The party who claims any special damage must specially state and prove the particular damage which he has sustained arising out of the wrongful act of the other party. Thus in an action for false imprisonment general damages are recoverable in respect of the inconvenience, indignity and discomfort so suffered by the plaintiff; for these are the natural and normal results which the law presumes to follow from any injury of this description. But if the plaintiff has by his imprisonment incurred medical expenses or has suffered any specific pecuniary loss of wages, this is special damage which must be expressly alleged and proved, otherwise compensation cannot recovered in respect of it.
(a) mere injury to feelings,
(b) the illness of the plaintiff, illness not being a natural result of the defamatory words,
(c) illness of any other person,
(d) the death of any other person,
(e) the mere loss of the society of acquaintances, as contrasted with the material loss of hospitality,
(f) the loss of membership of some society or congregation constituted for religious purposes, the membership of which does not carry with it material temporal advantages,
(g) any damage not pecuniary or capable of being estimated in money.
(a) loss of consortium of husband ,
(b) loss of marriage,
(c) loss of material hospitality,
(d) loss of employment,
(e) loss of dealing, even though it might have turned out unprofitably,
(f) loss of particular customers
(g) general falling off of profits,
(h) any other material loss.
Pecuniary loss, deduction of benefits received
In contract as well as in tort and in non-personal injury cases, the modern approach is to ask whether the benefit received is sufficiently causally connected with the defendant's wrongdoing so as to require it to be brought into account.
These damages mark the disapproval by a court of the conduct of a successful plaintiff. In such cases the chance of getting costs are very little for the successful plaintiff. He too comes before the court with unclean hands and his conduct is equally blameworthy as that of the defendant. Thus in Kelly v. Sherlock, where the defendant in his newspaper had libelled the plaintiff in very bad terms but the plaintiff had retorted with a counter attack, equally bad and base, the plaintiff got only a farthing as damages. Where contemptuous damages are awarded, in such a case the action should be regarded as oppressive and that it should never have been brought, and therefore good cause exists for depriving the plaintiff of his costs.
Vindictive or exemplary or deterrent damages
These types of damages are awarded by court when it views with extreme displeasure the wanton misconduct of the defendant in utter disregard of the plaintiff's rights. The plaintiff may not have sustained any material loss, still, in order to make an example of the defendants so that other similar minded persons should not attempt to do similar wrongs. The court awarded exemplary damages on top of an account of profits for breach of fiduciary duty.
"Exemplary damages" are a category of damages. Lord Devlin set out in Rookes v. Barnard the categories in which exemplary damages could be awarded, as under:
1. Where there has been oppressive, arbitrary or unconstitutional action by the servants of the Government;
2. When the defendant's conduct has been calculated by him to make a profit which may well exceed the compensation payable to the plaintiff; and
3. Where such damages are expressly authorised by statute.