Law of Torts
Damage and Damages: The Injury Suffered and the Money Awarded
Damage is the harm, loss or injury the plaintiff has suffered. Damages is the sum of money a court awards him for it. The first is a fact to be pleaded and proved; the second is a figure to be claimed and assessed. They belong to different stages of the same action and to different parts of the pleading, and running them together produces a plaint that asserts a loss without proving it and claims a sum without justifying it. The distinction is elementary and is constantly mishandled.
1. The Distinction
Damage | Damages | |
What it is | The loss, harm or injury itself | The pecuniary compensation awarded for it |
Its nature | A question of fact | A question of assessment, decided by the court |
How it is established | By evidence of what happened and what it cost | By applying the recognised heads and measures to the damage proved |
Where it sits in the plaint | In the cause of action, as an ingredient | In the prayer, as the relief sought |
Grammatically | A mass noun. There is no plural in this sense | Always plural in this sense |
If it is absent | No action lies, unless the tort is actionable per se | Nominal damages may still be awarded where a right was violated |
Who deals with it | The plaintiff proves it | The court fixes it |
- The test that settles every usage is to substitute a word. If "harm" fits, the word wanted is damage. If "money" fits, the word wanted is damages. A plaintiff proves damage and claims damages. He does not suffer damages, and he is not awarded damage.
- The older sense survives in one place. Distress damage feasant, the right of an occupier to seize an animal or chattel found on his land doing harm and to hold it until the harm was made good, uses damage in its original sense of the injury being done.
2. Damage as an Ingredient of the Cause of Action
- Most torts require damage. Negligence is the leading instance: there is no such thing as a negligence that has hurt nobody, and a defendant who drives carelessly and injures no one commits no tort at all.
- Torts actionable per se require none. Trespass to land, trespass to the person, false imprisonment and libel are complete on the wrongful act, and the plaintiff need prove no loss. The violation of the right is itself the injury.
- Where damage is an ingredient, the cause of action accrues when the damage occurs and not when the careless act was done, which is why limitation in negligence runs from the damage: TORT 097.
- Damage must also be of a kind the law recognises. Distress falling short of a recognised psychiatric injury is not damage for the purposes of negligence; pure economic loss is damage but is recoverable only in a confined class of case; and a loss which the law does not protect at all is damnum sine injuria and founds nothing: TORT 112.
3. The Kinds of Damages
The kind | When it is awarded |
Nominal | A legal right was violated but no loss followed. A small sum marks the violation. Ashby v. White is the classical instance |
Contemptuous | The right existed and was violated, but the court considers the action should never have been brought. A derisory sum, often the smallest coin, and the plaintiff commonly loses his costs |
Compensatory | The ordinary award. General damages for what the law presumes, and special damages for what must be pleaded and proved in figures |
Aggravated | Still compensatory. The award is raised because the manner of the wrong, the defendant's conduct, or his conduct in the litigation has increased the injury to the plaintiff's feelings |
Exemplary or punitive | Beyond compensation, to punish and deter. Confined in Rookes v. Barnard to oppressive, arbitrary or unconstitutional action by servants of the government; conduct calculated to make a profit exceeding the compensation payable; and where a statute expressly authorises it |
- These are kinds of damages and not kinds of damage. Nothing in the list describes an injury; each describes a basis on which money is awarded.
- Aggravated and exemplary damages are constantly confused. Aggravated damages compensate the plaintiff for an increased injury; exemplary damages punish the defendant and may exceed any injury at all. The first looks at the plaintiff, the second at the defendant.
- The subject is examined fully in TORT 092 to TORT 094.
4. General and Special Damages
General damages | Special damages | |
What they cover | Losses the law presumes to follow from the wrong | Losses that do not follow as a matter of course and must be specifically proved |
Pleading | Need not be pleaded with particulars | Must be pleaded specifically and with particulars |
Proof | Assessed by the court on the evidence of the injury | Proved in figures, item by item |
Examples in personal injury | Pain and suffering, loss of amenity, future loss of earnings | Medical bills incurred, loss of earnings to the date of trial, transport and attendant charges |
Examples in defamation | Injury to reputation, which is presumed | A specific contract lost, a specific appointment withdrawn |
5. Where the Confusion Does Real Damage
- In pleading. Damage belongs in the body of the plaint, as part of the cause of action, with particulars. Damages belong in the prayer. A plaint that recites a figure in the body without pleading the injury, or that pleads the injury and prays for a global sum without a basis, is defective in both places.
- In deciding whether a cause of action has accrued. The question is when the damage occurred, not when a sum became quantifiable, and a claim is not premature merely because the damages cannot yet be assessed.
- In limitation. Where damage is an ingredient, time runs from the damage. The amount of damages has no bearing on it.
- In the distinction between damage and injuria. A plaintiff may have suffered great damage and be entitled to no damages, because no legal right of his was violated; and he may have suffered no damage and be entitled to damages, because a right was violated and the tort is actionable per se: TORT 112.
- In mitigation and remoteness. These doctrines operate on the damage, limiting which consequences the defendant answers for, and only afterwards is the surviving damage converted into damages.
6. The Sequence in an Action
The stage | What is decided |
Duty and breach | Whether the defendant owed the plaintiff an obligation and failed in it |
Causation in fact | Whether the breach in fact produced the harm |
Remoteness | Which of the consequences the law will hold him answerable for. This filters the DAMAGE |
Mitigation | Whether the plaintiff could reasonably have reduced the harm. This also operates on the DAMAGE |
Heads of claim | Under what recognised heads the surviving damage may be compensated |
Quantification | What sum each head yields. This produces the DAMAGES |
Adjustment | Contributory negligence, interest, deductions and any amount already received |
⚠ Why the two words drifted apart, and why the difference is not pedantry The two words come from the same root and once meant the same thing, and the survival of distress damage feasant shows how recently damage still meant the harm being done rather than the money paid for it. What separated them was the growth of a body of rules about assessment. Once the law developed heads of compensation, measures, multipliers, conventional figures, rules of remoteness and mitigation, the sum awarded ceased to be a simple reflection of the harm and became a construct of its own, related to the harm but not identical with it. That is why the distinction is worth insisting on. A plaintiff who has lost his legs has suffered a damage that no arithmetic describes; the damages he receives are what a set of legal rules produces when applied to that damage, and the two are not the same quantity and were never meant to be. A lawyer who writes that his client suffered damages of a certain sum has not merely made a slip of grammar; he has asserted that the harm and the award are one thing, which is exactly the proposition the whole law of assessment denies. |
7. The Position Stated Shortly
1. Damage is the harm, loss or injury suffered; damages is the money awarded for it.
2. Damage is a question of fact proved by the plaintiff; damages is a question of assessment decided by the court.
3. Damage belongs in the cause of action; damages belongs in the prayer.
4. The test is substitution: if harm fits, the word is damage; if money fits, the word is damages.
5. Most torts require damage as an ingredient, but torts actionable per se, trespass, false imprisonment and libel among them, require none.
6. Where damage is an ingredient the cause of action accrues, and limitation runs, from the damage and not from the careless act.
7. The kinds of damages are nominal, contemptuous, compensatory, aggravated and exemplary, and these are kinds of award and not kinds of injury.
8. Aggravated damages compensate an increased injury to the plaintiff; exemplary damages punish the defendant and may exceed any injury.
9. General damages are presumed and need no particulars; special damages must be specifically pleaded and proved in figures.
10. Remoteness and mitigation operate on the damage, and only the damage that survives them is converted into damages.