Damages
From Wikipedia, the free encyclopedia.
Damages, in law has two different meanings. It is used to refer both to the harm suffered by a plaintiff in a civil action, and to any monies paid or awarded to him to compensate for said harm.
Generally, there are three kinds of damages: special damages, general damages, and punitive damages. Special damages are the enumerable or quantifiable monetary costs or losses suffered by the plaintiff, or the compensation therefore. For example, medical costs, repair or replacement of damaged property, lost wages, lost earning potential, loss of business, loss of irreplaceable items, loss of support, etc. General damages are items of harm or loss suffered, for which only a subjective value may be attached. Examples of this might be pain, physical suffering, emotional trauma or suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc.
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Compensatory damages
Compensatory damages are damages awarded for civil cases, it is awarded to the successful party, in the case of the plaintiff, it is awarded as a compensation for the pain undergone and also in most cases is included the legal services payment, however if it is the defendant that wins the case, then it is awarded for legal services and all hardships undergone during the trial. This is the rule in many countries other than the United States. You generally are not entitled to your attorney fees or for you hardships undergone during trial if you win.
History
Among the Saxons, a price called Weregeld was payed for homicide by the killer, in part to the family of the victim, in part to the local king.
Punitive or Exemplary damages
Generally, punitive damages (exemplary damages in the United Kingdom) are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious, and are over and above the amount of compensatory damages. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.
In England and Wales, exemplary damages are limited to the circumstances set out by Lord Devlin in the leading case of Rookes v Barnard. They are
1. Oppressive, arbitary or unconstitutional actions by the servants of government.
2. Where the defendant's conduct was 'calculated' to make a profit for himself.
3. Where a statute expressly authorises the same.
Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.
Restitutionary or Disgorgement damages
In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong. The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damaages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.
In England and Wales the House of Lords case of Attorney-General v Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy (George Blake), for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.
The basis for restitutionary damages is much debated, but can usually seen to be based on denying a wrongdoer any profit from his wrong. The really difficult question, and one which is currently unanswered, relates to what wrongs should lead to the availability of this remedy.
Nominal Damages
On the other hand, nominal damages (very small damages) are awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to US antitrust law, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing (1/4 of a penny) that the jury awarded to James Whistler in his libel suit against John Ruskin.
Economic damages
Economic damages in civil litigation are computed as the financial loss suffered by a person due to the wrongful actions of another person. The wrongful action may be either accidental, such as an auto accident, or deliberate, such as wrongful termination or harassment in employment situations. In a court of law, it is often useful for the lawyers for both the plaintiff and the defendant to employ economists to compute the value of the loss. The economists will not evaluate whether the action was wrongful, only how much money is required to return the plaintiff to the fiscal position he or she was in prior to the loss. In such a case, it is incumbent on both economists to fully disclose their methodology and how they reached their conclusions. The finder of fact will choose the result which is most in accord with the preponderance of the evidence, including any testimony given by the economist(s).
See also
