Substantial and other damages

[edit] Introduction

In law, damages are usually awarded for a tort (a wrong that has been suffered), such as a breach of contract or malicious property damage. When damages are awarded, they are designed to place the party that has been judged to have been wronged in the same position they would have been had the other party performed their contractual commitments, or had they not suffered the property damage.

Damages awarded for a tort can be nominal, substantial or punitive.

[edit] Nominal damages

Nominal damages are awarded where a plaintiff has not suffered any loss (whether material or financial) but has been the victim of a tort which can be quantified financially without proof of the loss, such as libel or trespass. Involving tiny sums, nominal damages are awarded because it is recognised that there has been an infringement of the plaintiff’s legal rights; they are not awarded as compensation for a loss.

Where nominal damages are awarded, they recognise that the plaintiff’s rights have been violated but the sums involved are usually trifling (currently two pounds in the UK, one dollar in the US). A famous case concerns Winston Churchill, who won 25 cents’ nominal damages in a libel lawsuit against an author who claimed that he had been drunk during a White House dinner. The jury could not find any evidence to suggest that Churchill’s reputation had been tarnished although it recognised that he had been libelled. In another famous case, James Whistler was awarded one farthing in his libel suit against John Ruskin.

But if the value of nominal damages is so negligible, why bother going to court in the first place? There are three basic reasons:

• The plaintiff wants to be vindicated.
• The plaintiff is fighting for a cause, e.g perceived human rights violations
• An award of nominal damages may lead to the plaintiff getting punitive damages.

[edit] Substantial damages

Substantial damages are awarded as a means to compensate a plaintiff where they have suffered an actual loss. Substantial damages can be either general or special.

• Special damages are those that can be quantified for specific losses suffered or expenses actually incurred, e.g a third party causing malicious damage to a building or the plaintiff incurring expenses as a result of a holiday being cancelled through no fault of their own.
• General damages are more difficult to quantify as they cover damages for pain, suffering or loss of expectation of life. They therefore must be quantified by the court.

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 and damages sustained as a result of a breach of contract.

[edit] Exemplary damages

Also called punitive damages in the US, exemplary damages are intended to punish, reform or deter a defendant and others from undertaking acts similar to those which caused damage to the plaintiff; the plaintiff therefore receives more than what they have actually lost. Exemplary damages are not usually awarded for breaches of contract.

[edit] Aggravated damages

Aggravated damages may be awarded where the conduct of a defendant has increased the injury suffered by a plaintiff. Such injuries may include pain, anguish, humiliation, damaged self-esteem and similar woes.

[edit] Related articles on Designing Buildings Wiki

• Betterment.
• Breach of contract.
• Causation.
• Collateral warranty.
• Consequential losses.
• Construction contract.
• Contract v tort.
• Damages in construction contracts.
• Joinder.
• Liquidated damages.
• Liquidated v unliquidated damages.
• Loss and expense.
• Measure of damages.
• Mitigation of loss.
• Penalty.
• Remoteness.
• The distinction between liquidated damages clauses and penalty clauses.
• Unliquidated damages.