Introduction
In the English law of civil wrongs, particularly in the fields of tort and contract, the primary remedy sought by a claimant is an award of damages. The terms ‘damage’ and ‘damages’ are fundamental to the civil justice system, yet they represent distinct concepts. ‘Damage’ refers to the loss, harm, or injury suffered by the claimant, whereas ‘damages’ refers to the monetary sum awarded by the court to compensate for that damage. The principal aim of an award of damages is to place the innocent party back in the position they would have been in had the wrong not occurred, a principle known as restitutio in integrum. However, the law also recognises other forms of damages that serve different functions, such as vindicating a right or punishing a defendant’s conduct. This essay will define the legal concept of ‘damage’ before providing a detailed explanation of ‘damages’ as a remedy. It will then proceed to explore the different types of damages available in England and Wales, focusing on the distinction between compensatory and non-compensatory awards.
Defining 'Damage': The Harm Suffered
In many civil claims, particularly in the tort of negligence, the claimant must prove they have suffered actionable damage. ‘Damage’ is the adverse physical, financial, or psychological effect on the claimant resulting from the defendant’s wrongful act. It is the factual basis upon which a claim for compensation is built. Without legally recognised damage, a claim in negligence, for example, will fail, as the tort is not actionable per se (by itself).
The law does not consider all forms of harm or loss to be actionable damage. The harm must be more than minimal or trivial. The House of Lords case of Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39 provides a key illustration. In this case, claimants had been exposed to asbestos and developed pleural plaques, which were a form of scarring on the lungs. However, these plaques were asymptomatic, did not cause other illnesses, and did not reduce life expectancy. The House of Lords held that this physiological change did not constitute actionable physical injury because it was not, in itself, harmful. Lord Hoffmann stated that damage is an "abstract concept of being worse off, physically or economically" and that the plaques did not make the claimants any worse off in a way the law would recognise. This case demonstrates that for damage to be legally actionable, it must constitute an actual injury, impairment, or loss.
Legally recognised damage can be broadly categorised into three main types:
- Personal Injury: This includes any physical harm, from minor injuries to severe, life-altering conditions. It also encompasses recognised psychiatric illnesses, such as Post-Traumatic Stress Disorder, as seen in cases like Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
- Damage to Property: This involves physical damage to a claimant’s land or goods, or interference with their use and enjoyment of property.
- Economic Loss: This refers to purely financial losses that are not a consequence of personal injury or property damage, such as the loss of a prospective profit.
Therefore, ‘damage’ is the legally recognised harm or loss that forms the core of a civil claim, acting as the trigger for the court’s consideration of a remedy.
Defining 'Damages': The Monetary Award
While ‘damage’ is the harm suffered, ‘damages’ are the primary remedy awarded by the court for that harm. They are a sum of money intended to compensate the claimant for the damage caused by the defendant's tort or breach of contract. The fundamental principle governing the assessment of damages is restitutio in integrum, or the compensatory principle. This was articulated by Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, who stated that damages should be "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 now getting his compensation or reparation" (at p. 39).
This principle is applied differently in tort and contract. In tort, the aim is to restore the claimant to the position they were in before the tort was committed. In contract, the objective is to put the claimant in the position they would have been in had the contract been properly performed. Despite this difference in perspective, the overarching goal in both areas is compensation for loss. The law of damages is therefore primarily concerned with a process of valuation—assessing the claimant's loss in monetary terms to provide a fair and just award.
The Classification of Damages
Damages can be classified into several categories based on their purpose and the nature of the loss they are intended to address. The most significant division is between compensatory and non-compensatory damages.
Compensatory Damages
As the name suggests, compensatory damages are intended to compensate the claimant for their loss. This is the most common form of damages awarded. They are further divided into pecuniary and non-pecuniary losses, and into general and special damages.
Pecuniary and Non-Pecuniary Losses Pecuniary losses are those which can be readily calculated in financial terms. Examples include the cost of repairing damaged property, medical expenses, and loss of earnings. These are tangible, out-of-pocket expenses or lost income streams.
Non-pecuniary losses, by contrast, are those that are not easily quantifiable in money. This category primarily applies to personal injury claims and includes compensation for:
- Pain and Suffering: This covers the physical pain and mental anguish caused by the injury.
- Loss of Amenity: This compensates for the loss of enjoyment of life, such as the inability to pursue a hobby, play a sport, or engage in social activities.
Quantifying non-pecuniary loss is inherently difficult. As explained by Horsey and Rackley (2021), there is no simple formula to convert suffering into a monetary figure. Instead, courts rely on judicial precedent and the Judicial College Guidelines, which provide a tariff of awards for different types of injuries, to ensure consistency and fairness in awards.
General and Special Damages This classification relates to how the losses are calculated in relation to the trial date.
- Special damages refer to pecuniary losses that the claimant can prove and quantify for the period up to the date of the trial. This includes past loss of earnings and any specific expenses incurred before the court hearing.
- General damages are losses that cannot be precisely calculated at the time of the trial. This category includes all non-pecuniary losses (pain, suffering, loss of amenity) and future pecuniary losses, such as future loss of earnings or the ongoing cost of care. Calculating future losses often involves a multiplier/multiplicand method to arrive at a lump sum.
Non-Compensatory Damages
While compensation is the main goal, damages can sometimes be awarded for other reasons. These are known as non-compensatory damages.
Nominal Damages Nominal damages are awarded when a claimant’s legal right has been infringed, but they have suffered no actual damage. The sum awarded is very small and serves simply to vindicate the claimant's right and confirm that the defendant acted wrongfully. In Constantine v Imperial Hotels Ltd [1944] KB 693, a famous cricketer was refused accommodation by a hotel because of his race, in breach of its duty as an innkeeper. As he found accommodation elsewhere and suffered no financial loss, he was awarded nominal damages of five guineas to acknowledge the infringement of his legal right.
Contemptuous Damages Contemptuous damages are the smallest coin of the realm (e.g., 1p) and are awarded when the court finds that the claimant’s claim is technically successful but without merit, and should not have been brought. This award shows the court's disapproval of the claimant's conduct in bringing the action. For example, in a defamation case where the claimant's reputation was not seriously harmed, a court might award contemptuous damages.
Exemplary (or Punitive) Damages Exemplary damages are a rare and controversial category. Unlike compensatory damages, their purpose is not to compensate the claimant but to punish the defendant for their wrongdoing and to deter similar conduct in the future. Their availability in English law was severely restricted by the House of Lords in Rookes v Barnard [1964] AC 1129. Lord Devlin established three limited categories where exemplary damages could be awarded:
- Oppressive, arbitrary, or unconstitutional action by servants of the government.
- Where the defendant’s conduct was calculated to make a profit that might well exceed the compensation payable to the claimant.
- Where an award of exemplary damages is expressly authorised by statute.
These categories remain the foundation for exemplary awards today, as affirmed in cases like Kuddus v Chief Constable of Leicestershire [2001] UKHL 29. The award is exceptional, reserved for cases where the defendant has shown a cynical disregard for the claimant’s rights.
Conclusion
In conclusion, the concepts of 'damage' and 'damages' are central pillars of the English civil justice system. 'Damage' is the harm, loss, or injury sustained by a claimant, which must be legally recognised and more than trivial to ground a claim. 'Damages' are the monetary remedy awarded by the court, primarily governed by the compensatory principle of restitutio in integrum. The main function of damages is to restore the claimant to their pre-wrong position. This is achieved through an award of compensatory damages, which are categorised by the nature of the loss (pecuniary or non-pecuniary) and the timing of its calculation (special or general). However, the law also recognises non-compensatory damages, such as nominal and contemptuous damages, which serve to vindicate rights or show disapproval of a claim. Finally, in exceptional circumstances, exemplary damages may be awarded to punish and deter outrageous conduct. Together, these different forms of damages provide a flexible, if sometimes complex, system for redressing civil wrongs.
References
Cases
- Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
- Constantine v Imperial Hotels Ltd [1944] KB 693
- Kuddus v Chief Constable of Leicestershire [2001] UKHL 29
- Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
- Rookes v Barnard [1964] AC 1129
- Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39
Books
- Horsey, K. and Rackley, E. (2021) Tort Law. 7th edn. Oxford: Oxford University Press.
