What is tort?
- Tort is a civil wrong which arises the action for damages.
Definition of Torts by the Jurists
- Salmond defined Tort as,
“Tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust, or other merely equitable obligation.”
- Winfield defines torts as,
“Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
What are the essentials of the torts?
Following are the essentials of the torts:
- Act or Omission
- Motive / intention
- Injury
- Damages
- Act or Omission
Act or action is real and could be considered the positive element needed to commit a tort because a tort cannot be committed unless there is no physical action of a person.
Omission or omit is the failure to do what one should have done, if they had a legal duty and some will say moral obligation to act.
An act or omission shall be wrong if the person sought to be held liable was under a legal duty. The relevant act or omission should be recognized by law. It should not be a moral or social mistake.
- Motive / intention
The person committing the tort must have the intention to harm or give an injury to the other person, and the plaintiff must proof the intention the defendant.
It may be intentionally or negligently committed.
Illustration: Committing a trespass or publishing a statement, defaming another person or mistakenly detaining another person, may be liable, as the case may be, for trespass, defamation or false imprisonment.
- Injury
In the context of torts, “injury” describes the invasion or infringement of any legal right. The legal rights of others should not be adversely affected. All infringement of private rights are therefore enforceable per se, which means that no evidence is required. However, violations of public rights are not unless substantial damage is done to the complainant in addition to the injury to the public.
- Private rights- All rights granted to a particular person excluding the whole world. Ex: right to property, right to body security, right to reputation, etc.
- Public rights- Rights belonging to society members in general.
- Damages
The pecuniary compensation paid to the plaintiff for the wrongful acts done by the defendant.
They are designed not only as satisfaction to the injured person but also as determent to the wronged one to keep him away from committing in future.
Definitions of the Damages
- Black law dictionary
“Money claimed on compensation for loss or injury.”
- Oxford dictionary
“A sum of money claimed or awarded in compensation of an injury.”
Note:
Damages is often confused with” damage. It should be known, though, that these two words are significantly different and distinct from one another. Although “damages” refers to the compensation awarded or sought, “damage” refers to the harm or loss that is alleged or awarded for such compensation. ‘Damage’ may be monetary or non-direct (which may apply to monetary benefit in situations where there is a lack of reputation, physical or emotional injury or suffering).
It is notable at this juncture that, in general, losses can be distinguished from rewards. Compensation is a wider definition that covers payments rendered to an entity for any form of loss or harm incurred owing to causes such as possession of the property from another person or regulatory breaches, removal of jobs, seeking compensation by the aggrieved party; moreover, penalties occur from actionable errors.
Damages have gained much significance especially among commercial transactions, and as punitive measures for violation of rights of concerned persons. The nature of damages granted across various areas varies significantly.
The two most essential terminologies in tortious liability
- Injuria Sine Damnum
Injuria means an violation of a right conferred on the complainant by law or unauthorized interference with the right of the complainant, however trivial it may be.
Damnum means substantial money, comfort, health, loss or damage and Sine means without.
briefly, injuria sine damnum means an infringement of the law without causing the plaintiff any harm, loss or damage.
- Damnum Sine Injuria
Damnum means substantial damage, loss or damage to money, comfort, health or the like.
Sine means without and Injuria means an infringement of the right conferred on the plaintiff by law or unauthorized interference, as trivial as it may be, with the right of the plaintiff.
So, damnum sine injuria means damage not accompanied by unauthorized interference with the lawful right of the plaintiff.
Steps for calculating the damages for torts
There are some principles for the measurement of damages.
Step No.1
After arriving at the conclusion that the defendant is liable and the damages is not to remote, the court has to assess the damages which the injured party is entitled to recover from the defendant.
Explanation;
The term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of duty which may be compensated by a damages award. Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of duty. Accordingly, once factual causation is established, it is necessary to ask whether the law is prepared to attribute the damage to the particular breach, notwithstanding the factual connection.
Damage which is too remote is not recoverable even if there is a factual link between the breach of duty and the loss.
Step No.2
The maximum amount of the damages which the plaintiff in entitled to receive depends upon circumstances of each particular case.
Explanation:
The maximum amount of the damages that has to be paid to the plaintiff, it varies from case to case. After determining the nature of the case, court decides the damages as it is mentioned earlier it depends upon the circumstances of the case, for example; for some cases like consequential damages the court keeps every expenditure and loss of the plaintiff which has to be paid to the defendant.
For instance: if the the defendant intentionally dugs up a whole in the front of the house of the plaintiff and the plaintiff falls into that whole, in such case the plaintiff may suffer certain types of loss such as;
- Legal expences
- Medical expences
- Mental shock
- Fulfillment for his wages
The court determines the pecuniary damages whether he has observed a mental shock that may have caused the plaintiff some mental disturbances.
- The court determines that during his legal comings of the court may have affected his earning or wages, the plaintiff may have taken a break for the legal proceedings of the court so that his business may have been closed for the time being.
So whatever the loss is that the plaintiff suffered, it is also counted into the damages to be paid to the plaintiff by the defendant.
- The plaintiff may have experienced a mental shock. The mental shock keeps a significant position in the law of torts that the defendant has scared the plaintiff intentionally to make him frightened.
A mental shock is a psychological response to a terrifying, traumatic or surprising experience.
Emotional shock is often part of the fight or flight response, a normal but painful way your brain reacts to something it sees as a threat to your well-being.
- The court also determines that the person may have spent his money over his medical treatment, such type of expenditures are also counted to be paid to the plaintiff.
It can be his mental treatment or may be his Physical treatment that the plaintiff has suffered.
- The court considers his legal expenditures too that the plaintiff has given an amount of money to the lawyer in order to carry his case to the court and come up with a remedy.
The plaintiff has to pay the expenditures to the lawyer whatever fee the lawyer charges to resolve his case.
Note: the expences for a lawyer is not directly paid to the lawyer himself but they are all counted in the whole sum of the damages is paid to the plaintiff.
The point being is that the maximum amount of every case is different and it mainly depends upon how much the plaintiff has spent and how much it costs inorder to sustain the injury of the plaintiff.
Step No.3
While awarding the compensatory damages, the injured party should be placed in the same position as it would have been committed by him.
Whatever sum is awarded, whether large or small, must afford a measure of compensation to the plaintiff with reference to actual harm sustained by him.
The law does not aim at restitution but compensation, and the true test is, what sum would afford, under the circumstances of the particular case, a fair and reasonable compensation to the party wronged for the injury done to him,
The plaintiff’s own estimate being regarded as the maximum limit. The measure of reparation or damage for any injury should be assessed as nearly as possible at a sum of money which would put the injured party in the same position as he would have been in if he would not have sustained the injury
Damages are mainly of 2 types
There are two types of compensatory damages you can receive when you file a personal injury claim: special damages and general damages. Sometimes they are also referred to as economic and non-economic damages.
- General damages
- Special damages
Other types of Damages;
These are as follows
- Liquidated damages
- Unliquidated damages
- Contemptuous Damages
- Nominal Damages
- Substantial Damages
- Exemplary Damages
- Consequential Damages
- Prospected Damages
Defining each kind of damages specifically
- General damages:
General damages are those damages which law presues to arise from the negligence.
Those damages which refer to damages for things like intentional infliction of emotional distress which do not have a set monetary cost.
HOW TO CALCULATE GENERAL DAMAGES
When it comes to general damages, it is often difficult to calculate the exact monetary amount that each plaintiff should be awarded. For example, compensation for mental suffering—or, in some cases, even embarrassment—will differ for each individual case. Often, outside experts, such as mental health professionals, are brought in to help determine an exact dollar amount for general damages compensation.
Some determining factors include the intensity of an injury, the emotions of the jury, and the skillset of the injured party’s lawyer. This is why it’s critical to work with an experienced attorney who knows how to maximize your compensation.
Illustration: in the case for a defamation when the defendant is proved wrong by the court of law as liable for the defamation now such scenario the court will compensate the defendant for the general damages as it includes the suffering to the fame and reputation of the plaintiff.
In addition to pain and suffering, situations that qualify for general damages include:
Loss of reputation
Loss of enjoyment of life
Disfigurement
- Special damages:
Special damages are those which are capable of calculation.
In tort law, special damages are damages like car dents or medical expenses that can actually be ascertained, and they are contrasted with general damages.
Special damages further compensate an injured party for losses they have received because of the at-fault party’s actions or inactions. Special damages amounts can be calculated by determining a sum total loss for the plaintiff’s injuries. This can be achieved because a specific dollar amount is attached to each of the damages.
A typical example of special damages is the total amount of medical bills received due to post-accident treatments for the plaintiff.
For property damage, referring to similar past accidents can sometimes help determine the amount the at-fault party is liable for. Car values can easily be determined
HOW TO CALCULATE SPECIAL DAMAGES
Special damages are easier to calculate than general damages because exact d amounts have already been assigned to each item in the form of receipts. Documentation can be either digital or on paper.
An example: A slip and fall may require medical treatment totaling Rs 8,000. Due to the fall, the plaintiff also missed a week of work. At Rs 500 a day, that’s Rs 2,000. So, the plaintiff should be awarded Rs 10,000 for their injury.
Now let’s suppose the plaintiff was also holding an special TV LED they had just purchased before they fell. If the lamp cost $2,000, then the at-fault party’s negligence would now total $12,000.
Special damages get more complicated when a dollar amount needs to be attached to future medical care and future lost wages. Sometimes, expert witnesses and evidence need to become involved.
TYPES OF SPECIAL DAMAGES
When it comes to special damages, each case is unique. Here are a few items that fit within this category:
- Property damage
- Lost wages and loss of earnings
- Medical treatment costs (including past and/or future)
- Costs toward everyday household assistance necessitated by the injury
- Loss of one-of-a-kind items
- Liquidated damages
Liquidated Damages means those damages which are predetermined. And based on such predetermination the person is given damages. They are quite similar to the special damges.
Note: The principles of the special damages apply to the liquidated damages.
- Unliquidated damages
Unliquidated Damages under Tort means those damages which are not predetermined and are based upon the evaluation of loss the person has suffered. Unliquidated Damages are awarded in the case of Torts as both of the parties are unaware of the potential loss’s compensatory equivalence.
They are quite similar to the special damges.
Note: The principles of the special damages apply to the liquidated damages
For example, A trespassed on B’s property. B caught him and A ran off. There is no predetermined amount that has been fixed for the trespasser. Court will in such cases grant the damages based on the facts.
- Nominal Damages:
These damages are awarded when the purpose of the case is just to establish a right, no substantial harm or loss have been suffered.
Nominal damages are those in which even though the plaintiff has suffered a legal injury at the hands of the defendant, there is no actual suffered by him. These damages are provided in the cases of Injuria sine damno in which the Court recognises the violation of the right of the plaintiff but the amount of damages are so nominal or low because of no actual loss to the plaintiff.
Calculation of nominal damages:
This kind of damages reflects a legal recognition that a plaintiff’s rights have been violated through a defendant’s breach of duty or wrongful conduct. The amount awarded is ordinarily a trifling sum, such as a dollar, which varies according to the circumstances of each case. In certain jurisdictions, the amount of the award might include the costs of the lawsuit.
In general, nominal damages may be recovered by a plaintiff who is successful in establishing that he or she has suffered a loss or injury as a result of the defendant’s wrongful conduct but is unable to adequately set forth proof of the nature and extent of the injury.
For example, an injured plaintiff who proves that a defendant’s actions caused the injury but fails to submit medical records to show the extent of the injury may be awarded only nominal damages.
The amount awarded is generally a small, symbolic sum, although in some jurisdictions it may equal the costs of bringing the lawsuit.
The most famous case of nominal damages was when Prime Minister Winston Churchill was awarded a shilling (about 25 cents) in a libel lawsuit he had brought against author Louis Adamic for writing that Churchill had been drunk during a dinner at the White House. The Prime Minister was vindicated, but the jury could not find that his towering reputation had been damaged.
In the case of Ashby v. White (1703) 92 ER 126, the plaintiff was prevented from voting by the defendant and the candidate for whom the plaintiff was going to vote still won. The plaintiff sued the defendant. It was held that even though no actual damage was suffered by the plaintiff, the defendant was still liable for preventing him from exercising his legal right to vote and thus nominal damages were awarded in this case.
- Contemptuous damages:
These damages are awarded when the court considers that the action should never be brought.
In these type of damages, the Court recognizes that the right of the plaintiff is violated but to show that the suit brought by the plaintiff is of such a trivial nature that it has only wasted the time of the Court, the Court awards a meager amount to the plaintiff as damages.
This is similar to the nominal damages but the only difference between the two is that in nominal damages the plaintiff suffers no actual loss and in contemptuous damages, the plaintiff suffers actual damage but it is a trivial one in which he does not deserves to be fully compensated.
Calculation of Contemptuous damages:
Contemptuous damages are a derisory amount awarded to show disapproval at the bringing of a claim. This is where a court awards a very small amount of damages to indicate the court’s disapproval of the court action having been brought at all. This might be relevant in a defamation action, where the court considers that the person bringing the action already has a poor reputation, and that the false statement made about the person is unlikely to damage their reputation much further.
It is to be distinguished from nominal damages because nominal damages are awarded when the plaintiff has suffered no loss, whereas contemptuous damages are awarded when the plaintiff has suffered some loss but he does not deserve to be fully compensated.
Illustration: If A’s dog enters B’s house and relieves himself and B accidentally steps on it and is disgusted and thus, he brings a suit against A, the Court will rule in B’s favour but because of such a trivial nature of this case the damages awarded by the Court will be of a meagre amount.
- Substantial damages:
It is awarded when the court considers it fair to compensate the injury sustained they are sometimes called substantial damages.
Damages awarded in respect of a tort. The general aim of an award of damages in tort is to put the injured party in the same position as they would have been in if the tort had not occurred. Damages in tort aim to restore the claimant to their pre-incident position.
Only proportionate to the injury caused, not more or less.
How to calculate substantial damages ?
It means damage of any origin sustained by a structure during any one-year period whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred.
Substantial damage also means flood-related damage sustained by a structure on two separate occasions during a 10-year period for which the cost of repairs at the time of each such flood event, on the average, equals or exceeds 25 percent of the market value of the structure before the damage occurred.
Calculating more specifically
When courts assess substantial damages, they consider what the loss to the plaintiff actually is. For example, ten years of working life lost as a result of having sustained injuries from the reckless driving of a third party would not be compensated as ten years’ worth of salary, but what the plaintiff could have expected to earn in that period; this would be the net income, equal to the salary minus taxes, national insurance etc. This principle applies to damages from a tort.
- Exemplary damages:
Exemplary damages are awarded when wrong done is of a serious nature and is done with the express intention to injure.
“Exemplary damages” means any damages awarded as a penalty or
by way of punishment but not for compensatory purposes. Exemplary
damages includes punitive damages.
How to calculate them
Factors to consider in awarding exemplary damages, if any, these are as following
- The nature of the wrong.
- The character of the conduct involved.
- The degree of culpability of the wrongdoer.
- The situation and sensibilities of the parties concerned.
- The extent to which such conduct offends a public sense of justice.
- Consequential damages:
An action would lie for damages are either intended result of the defendant’s wrongful act or the natural or probable result of such act.
In other words the plaintiff must proof that any particular damages is the wrong committed by the defendant.
Consequential damages claimed to have resulted from any indirect, incidental, consequential, punitive, or any other Loss, including damages claimed to have resulted from harm to business, loss, savings, or profits, or other economic Loss claimed to have been suffered not measured by the prevailing Party’s actual damages.
Any other damages typically considered consequential damages under Applicable Law, regardless of whether the Parties knew or had been advised of the possibility that such damages could result in connection with or arising from anything said, omitted, or done hereunder or related hereto, including willful acts or omissions.
How to calculate Consequential damages?
- The court determines that during his legal comings of the court may have affected his earning or wage, the plaintiff may have taken a break for the legal proceedings of the court so that his business may have been closed for the time being.
- The plaintiff may have experienced a mental shock. The mental shock keeps a significant position in the law of torts that the defendant has scared the plaintiff intentionally to make him frightened.
- The court also determines that the person may have spent his money over his medical treatment, such type of expenditures are also counted to be paid to the plaintiff.
- The court considers his legal expenditures too that the plaintiff has given an amount of money to the lawyer in order to carry his case to the court and come up with a remedy.
- Prospective damages:
Damages may be awarded to the plaintiff not as a compensation for a loss which he has sustained at the time of commencement of the act but also for the probable future injury, in respect of the loss which is reasonably anticipated.
Not only can a tort inflict current injury, but also continuous or potential damage, as if a person is severely harmed and then robbed of potential earning capacity. Yet common law insisted that with all damages, current and future, there should be one suit since public justice requires an end to lawsuits.
How is prospected damages calculated?
This being so, provision is not only made in the form of ‘prospective’ damages for current injury but also as best it can be for potential loss. On this topic, a case worth noting is that of Y.S. Kumar v. Kuldip Singh, of which the Excise and Taxation Officer was the respondent. A vehicle struck him, which resulted in physical damage to his ankle. Owing to those injuries that impacted his enjoyment of his daily life, he suffered permanent disability.
The Court of paid a prospective reward of Rs. 7,200 estimated at Rs. 50 p.m. In regards to physical injury and lack of enjoyment of everyday life for a period of 12 years.
Thus, it has been shown that in one and the same action, the damages are measured. For the same cause of action, there should not be more than one suit.
There are, however, two exceptions to the above rule:
(a) if the same wrongful conduct violates two different rights, different acts are allowable. (For example, the appellant was a car driver in Brunsden v. Humphrey. He was seriously injured and his car was destroyed due to the servant of the defendant’s negligence. He regained the car for the damage and then brought a separate suit for personal injury. Held: the latter allegation was maintainable since there were distinct causes of action.)
(b) Because the tort is an ongoing one, subsequent sue for personal injuries.