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Damages:
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A cash compensation ordered by a court to offset losses or suffering caused by another’s fault or negligence.
Related Terms: Tort
In Canson Enterprises, La Forest of Canada's Supreme Court writes:
"There can be little doubt that damages come within the province of the common law, although some early transgressions appear to have taken place where equity awarded damages.
"Damages are a monetary payment awarded for the invasion of a right at common law.
"Equity aimed at restoring a person to whom a duty was owed to the position in which he or she would have been had the duty not been breached. This it did through a variety of remedies, including compensation.
The difference between damages and restitution was abundantly clear in cases of breaches of trust....
The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust. The suit was always for an equitable debt or liability in the nature of debt. It was a suit for the restitution of the actual money or thing, or value of the thing, of which the cheated party had been cheated."
After long-winded suggestions that "a clear-cut definition is no longer feasible", McGregor on Damages nonetheless defines the term as follows:
"Damages in the vast majority of cases are the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at one time, unconditionally and in stirling (dollars)."
In R v Agat Laboratories Ltd., the Alberta Provincial Court adopted these words to define damages:
"... money adjudged to be paid by one person to another as compensation for a loss sustained by the latter in consequence of an injury committed by the former...
"(T)he pecuniary satisfaction awarded by a judge or jury in a civil action for the wrong suffered by the plaintiff....
"Damages fall under two heads: general damages, i.e., such damages as the law will presume to flow from that which forms the subject-matter of the action; and special damages, i.e., such other damages as can be recovered only if specially alleged and specifically proved. When an action cannot be sustained unless there is special damage, the subject-matter is described as not being actionable per se.
"Damages are either liquidated or unliquidated. Whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data, it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties, and is fixed by opinion or by an estimate, the damages are said to be unliquidated."
Damages are a typical request made of a court when persons sue for breach of contract or tort.
Damages also have a deterrent role. In Case of John Wilkes, Justice Mansfield wrote:
"Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as proof of the detestation of the jury to the action itself."
Similarly, in Merest v Harvey, Justice Gibbs wondered:
"I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?"
REFERENCES:
- Canson Enterprises v Broughton & Co., [1991] 3 S.C.R. 534
- Case of John Wilkes 19 How. St. Tr. 1167; Lofft 19 (1764)
- Duhaime, Lloyd, Contract Law Dictionary
- Duhaime, Lloyd, Tort & Personal Injury Law
- Duhaime, Lloyd, Tort & Personal Injury Law Dictionary
- McGregor, H., McGregor on Damages (London: Sweet & Maxwell, 2003), p. 3.
- Merest v Harvey 5 Taunt. 443 (1813)
- R v Agat Laboratories Ltd. 1998 ABPC 24
CATEGORIES AND TOPICS:
This term applies to the following areas of law and categories;