Law of Torts
The Kinds of Damages: Compensatory, Nominal, Contemptuous, Aggravated and Exemplary, and the Rookes v. Barnard Categories
Damages in tort are described by a confusing set of names, and the confusion clears once the names are sorted by function: what the award is for. Compensatory damages repair a loss. Nominal damages vindicate a right where no loss followed. Contemptuous damages mark the court's disapproval of the action. Aggravated damages compensate an injury to feelings caused by the manner of the wrong, and are compensatory despite appearances. Only exemplary damages punish, and Rookes v. Barnard confined them to three categories.
The five kinds by function, the Rookes categories, and the three pairs of descriptive labels
1. Compensatory Damages
- The ordinary award, and the point of the whole exercise.
- Measured by the plaintiff's loss, and not by the defendant's gain, his degree of fault, or his means.
- The governing principle is restitutio in integrum: to place the plaintiff, so far as money can do it, in the position he would have occupied had the tort not been committed.
- Assessment is examined in TORT 094 and TORT 095.
2. Nominal Damages
- A small sum marking that a right has been violated, where no loss followed.
- Available where the tort is actionable per se: trespass to land, trespass to goods, assault, battery, false imprisonment, libel.
- It is the remedy for injuria sine damno, a legal wrong without damage, examined in TORT 008. Ashby v. White is the classic instance: a qualified voter wrongfully prevented from voting recovered although the candidate he supported won.
- Its function is vindication and not compensation. The award establishes the right and may settle a disputed boundary, a disputed way, or a disputed title, which is why nominal damages are worth suing for.
- It ordinarily carries costs to the plaintiff, which is the practical difference from contemptuous damages.
3. Contemptuous Damages
- The smallest coin in the realm, awarded where the plaintiff has a technical right but the court considers that the action should never have been brought.
- It is a rebuke. The plaintiff has succeeded in law and failed in the court's estimation, and the award says so.
- It ordinarily carries an order that the plaintiff pay the costs, or at least that he be refused his own, which is the substantive consequence.
- It arises most often in defamation, where the plaintiff's own conduct provoked the words, or where his reputation in the relevant respect was already worthless.
Nominal damages | Contemptuous damages | |
The message | Your right has been violated and the law vindicates it | Your right has been violated and the action should not have been brought |
The amount | Small, but a real figure | The smallest coin available |
Costs | Ordinarily to the plaintiff | Ordinarily against the plaintiff, or refused to him |
Why it is awarded | Because no loss followed the violation of the right | Because the court disapproves of the plaintiff or of the claim |
4. Aggravated Damages
- They are compensatory and not punitive, though they are often mistaken for punishment because they are awarded in response to the defendant's conduct.
- They compensate the additional injury to the plaintiff's feelings and dignity caused by the manner of the wrong, or by the defendant's conduct afterwards.
- The circumstances that aggravate are insult, humiliation, a high handed or oppressive manner, an abuse of a position of power, a refusal to apologise, a persistence in the wrong, and a plea of justification which the defendant knew he could not support and which put the plaintiff to the proof of his own innocence at trial.
- The test is the effect on the plaintiff, which is what makes the award compensatory. Conduct that did not reach the plaintiff and did not add to his distress does not aggravate.
- They are not available to a corporation in respect of injury to feelings, a company having none.
5. Exemplary or Punitive Damages
📖 Rookes v. Barnard [1964] AC 1129, decided 21 January 1964 Facts The plaintiff, a draughtsman, resigned from his trade union after a disagreement. The union, which had a closed shop agreement with his employer, threatened to strike unless he was dismissed. The employer dismissed him. He sued the union officials for the tort of intimidation. Held The tort of intimidation was established. On damages, the House of Lords took the opportunity to confine the award of exemplary damages. Ratio Exemplary damages are not compensatory. They punish the defendant and deter others, and they confer a windfall on the plaintiff, so they are anomalous in a civil action. Lord Devlin confined them to three categories. First, oppressive, arbitrary or unconstitutional action by the servants of the government, and not by a private corporation or individual however powerful, because the mischief is the abuse of public power. Second, conduct calculated by the defendant to make a profit for himself which may well exceed the compensation payable to the plaintiff, the object being to make cynical wrongdoing unprofitable, and the principle extending beyond money to obtaining an object the defendant could not otherwise have secured. Third, where exemplary damages are expressly authorised by statute. Three further considerations apply: the plaintiff must himself be the victim of the punishable behaviour; the power must be exercised with restraint, since punishment is being imposed without the safeguards of the criminal law; and the defendant's means are relevant, which they never are to compensation. |
Aggravated damages | Exemplary damages | |
Their function | Compensatory. They repair an injury to feelings | Punitive. They punish and deter |
What the court looks at | The effect on the plaintiff | The conduct of the defendant |
Are the defendant's means relevant | No | Yes |
Availability | Wherever the manner of the wrong added to the injury | Only within the three Rookes categories |
Can a corporation recover them | Not for injury to feelings | Yes, as plaintiff, if the categories are met |
- In India the first Rookes category has been the most important, and the awards against the State in the constitutional tort cases examined in TORT 054 rest on the same reasoning: Bhim Singh awarded Rs 50,000 as exemplary costs for a mischievous and malicious detention by police officers.
- Common Cause v. Union of India, (1999) 6 SCC 667 is the standing caution on the limits: an award of exemplary damages must rest on a clear and rational basis, and cannot be imposed at large on a public officer where the elements of the tort alleged have not been established: TORT 052.
- The second category is the one that answers cynical commercial wrongdoing, and it is the rationale for exemplary awards in defamation against a publisher who calculated that the circulation would be worth more than the damages.
6. Three Pairs of Descriptive Labels
The pair | The distinction |
General and special | General damages are presumed from the tort and need not be pleaded with particulars: pain and suffering, loss of reputation, loss of amenities. Special damages are actual quantifiable losses which must be specifically pleaded and proved: medical bills, lost wages to date, the cost of repair. The distinction is one of pleading and proof, not of substance |
Past and prospective | Past damages are losses already suffered at the date of the award. Prospective damages are losses the plaintiff will suffer in future: future medical expenses, future loss of earnings, the cost of future care. Both are awarded in a single lump sum because of the once and for all rule |
Pecuniary and non pecuniary | Pecuniary loss is capable of arithmetical calculation: earnings, expenses, the cost of repair, the diminution in value. Non pecuniary loss is not: pain and suffering, loss of amenities, disfigurement, loss of expectation of life, injury to reputation. The second is assessed by reference to comparable awards and not computed |
⚠ Why exemplary damages are anomalous, and why they survive Lord Devlin's reservation about exemplary damages was not that they are unjust but that they confuse the functions of the civil and the criminal law. A civil action is brought by one party against another to repair a loss; punishment is the business of the State, and it is administered with safeguards, a higher standard of proof, a defined offence, and a right of appeal against sentence, none of which attaches to a civil award. A jury that punishes in a civil case punishes without those safeguards and hands the fine to the plaintiff, who gets a windfall. Against that, the two surviving categories answer real mischiefs that compensation cannot reach. Where a public officer abuses his power, compensation measured by the victim's loss may be trivial and the abuse serious, and the award exists to mark the constitutional wrong. Where a defendant has calculated that the profit from the wrong will exceed the damages, compensation is not a deterrent but a licence fee, and the second category exists to remove the calculation. Those are the reasons the anomaly is tolerated, and they explain why it is confined so narrowly. |
7. The Position Stated Shortly
1. Compensatory damages are measured by the plaintiff's loss, on the principle of restitutio in integrum.
2. Nominal damages vindicate a right where no loss followed, are available where the tort is actionable per se, and are the remedy for injuria sine damno.
3. Contemptuous damages are the smallest coin in the realm, awarded where the action should not have been brought, and ordinarily carry costs against the plaintiff.
4. Aggravated damages are compensatory: they repair the additional injury to feelings caused by the manner of the wrong or the defendant's later conduct.
5. Exemplary damages are punitive, confer a windfall, and were confined by Rookes v. Barnard to three categories.
6. The categories are oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated to make a profit exceeding the compensation payable; and express statutory authorisation.
7. The plaintiff must be the victim of the punishable behaviour, the power is to be used with restraint, and the defendant's means are relevant.
8. General damages are presumed and special damages must be specifically pleaded and proved.
9. Past and prospective damages are both awarded in a single lump sum because of the once and for all rule.
10. Pecuniary loss is calculated and non pecuniary loss is assessed by reference to comparable awards.