TORT 156 General and Special Damages — Law of Torts Notes for Judiciary

General and Special Damages: What the Law Presumes and What Must Be Proved in Figures

The division is one of pleading and proof and not of substance. General damages are losses the law presumes to flow from the wrong: they need not be pleaded with particulars and are assessed by the court on the evidence of the injury itself. Special damages are losses which do not follow as a matter of course, and which the plaintiff must therefore plead specifically, with particulars, and prove item by item, in figures. The practical consequence is severe and is the commonest way money is lost in a personal injury action: a head of loss that ought to have been particularised and was not will simply be disallowed, however real it was.

1. The Comparison

	General damages	Special damages
What they cover	Losses the law presumes to flow from the wrong	Losses that do not follow as a matter of course
Pleading	Need not be particularised	Must be pleaded specifically, with full particulars
Proof	Assessed by the court on the evidence of the injury	Proved item by item, with documents and figures
Quantification	A matter of judicial estimation, using conventional figures and multipliers	Arithmetical. The court adds up what is proved
Typical heads in personal injury	Pain and suffering, loss of amenity, future loss of earnings, future medical and attendant care, loss of marriage prospects	Medical bills incurred, loss of earnings to the date of trial, transport, attendant charges already paid, damaged clothing and property
Typical heads in defamation	Injury to reputation, which is presumed	A specific contract lost, an appointment withdrawn, a named customer who ceased dealing
The cut off	Looks forward from the date of trial	Looks backward to the date of trial
If not pleaded	Still recoverable, being presumed	Disallowed

2. The Rule of Pleading

The rule exists to prevent surprise. A defendant is entitled to know in advance what sums are claimed and on what account, so that he may investigate them, admit what is right and contest what is not.
General damages need no particulars because there is nothing to investigate. The court will fix a figure for pain and suffering whatever the defendant does, and no amount of notice would change the exercise.
Special damages do need particulars, because they consist of specific historical facts, each capable of being checked: a bill, a wage slip, a fare, an invoice.
The particulars must be furnished as soon as they are known, and where they change before trial the pleading should be amended rather than left to the evidence.
A claim advanced for the first time in evidence is liable to be disallowed even where the underlying loss is obviously genuine, and objecting to it is the defendant's entitlement rather than a technicality.

3. The Division in a Personal Injury Claim

The head	General or special	How it is established
Pain, suffering and loss of amenity	General	Conventional figures, adjusted for the gravity and permanence of the injury
Medical expenses already incurred	Special	Bills, prescriptions, receipts, hospital records
Future medical and surgical expenses	General	Medical evidence of what will be required, costed
Loss of earnings to the date of trial	Special	Salary slips, income tax returns, employer's certificate
Future loss of earnings or earning capacity	General	Income, multiplier and future prospects, applying Sarla Verma and Pranay Sethi
Attendant or nursing care already provided	Special	Receipts, or evidence of the commercial cost where a family member provided it
Future attendant care	General	Medical evidence of the need, costed and multiplied
Prosthetics, appliances and their periodic replacement	General for the future, special for what has been bought	Evidence of cost and replacement cycle
Transport, special diet, home alterations	Special for the past, general for the future	Receipts and evidence of continuing need
Loss of marriage prospects, disfigurement	General	Conventional figures

4. The Same Division in a Fatal Claim

Dependency is general damages, computed by the multiplier method from the income of the deceased, with future prospects added and a deduction for personal and living expenses: TORT 084.
The conventional heads are general. In National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 the Constitution Bench fixed them at Rs 15,000 for loss of estate, Rs 40,000 for loss of consortium and Rs 15,000 for funeral expenses, to be enhanced by ten per cent every three years.
Future prospects were also settled there: fifty, thirty and fifteen per cent for a deceased in permanent employment aged below forty, forty to fifty, and fifty to sixty; and forty, twenty five and fifteen per cent for the self employed or those on a fixed salary.
United India Insurance Co. Ltd. v. Satinder Kaur, decided 30 June 2020, holds that consortium is payable to each claimant entitled to it, and that loss of love and affection is not a separate head: TORT 085.
Actual expenses incurred before death, medical treatment, transport and the like, remain special damages and must be proved in figures.

5. Defamation and the Slander Rule

In libel, damage to reputation is presumed, so general damages are recoverable without proof of any loss at all.
In slander, special damage must be proved except in the four recognised classes, and the requirement is the reason the distinction between libel and slander matters at all: TORT 145.
Special damage there means actual temporal, pecuniary loss. Loss of friendship, of society, or of reputation in the abstract will not do, and neither will mental distress.
Ratcliffe v. Evans, [1892] 2 QB 524 relaxes the proof where the nature of the publication makes specific proof impossible, allowing a general loss of business to be proved where the falsehood was calculated to produce it: TORT 147.

6. Two Common Confusions

General damages are not the same as non pecuniary damages. The two divisions cut across one another. Future loss of earnings is pecuniary and general; damaged spectacles are pecuniary and special. The first division is about proof, the second about the nature of the loss: TORT 159.
Special damages are not the same as special damage in the sense used in public nuisance and slander. There the phrase means damage particular to the plaintiff and beyond that suffered by the public, which is a question of whether a cause of action exists at all: TORT 138.
And general damages are not nominal damages. Nominal damages are awarded where a right was violated and no loss followed; general damages presume that loss did follow: TORT 157.

⚠ Where money is actually lost in a personal injury claim

The heads that swing an award by lakhs, future loss of earning capacity, future attendant care, the periodic replacement of prosthetics, are all general damages, and a plaintiff who pleads nothing more than the injury will still get them, because the court assesses them on the medical evidence. That is why pleading failures in this area are rarely fatal to the big numbers. The money that is actually lost is lost in two different places. The first is the special damages, where a claimant who did not keep receipts for two years of travel to a hospital two hundred kilometres away, or whose family cared for him without any commercial arrangement, simply cannot prove the sums and is disallowed them, although both losses are perfectly real. The second is the evidential foundation of the general damages, which is less obvious and costs more: the multiplier depends on age and income, so an income not properly proved by returns and certificates produces a small multiplicand and a small award; and future care depends on medical evidence that the care will be needed, so a doctor who is not asked the right question in examination leaves the head unsupported. The practical lesson is therefore the opposite of what the pleading rule suggests. The pleading rule protects the special damages; what protects the general damages is the evidence, and it has to be gathered years before the trial by somebody who understood what each head would require.

7. The Position Stated Shortly

1. General damages are losses the law presumes; special damages are losses that do not follow as a matter of course.

2. General damages need no particulars; special damages must be pleaded specifically and proved item by item in figures.

3. The rule exists to prevent surprise, since special damages consist of specific historical facts the defendant is entitled to investigate.

4. A special damages claim advanced for the first time in evidence is liable to be disallowed however genuine the loss.

5. In personal injury, pain and suffering and all future losses are general; expenses and lost earnings to the date of trial are special.

6. Pranay Sethi fixed the conventional heads at Rs 15,000, Rs 40,000 and Rs 15,000, enhanced ten per cent every three years, and settled future prospects.

7. Satinder Kaur holds consortium payable to each claimant entitled to it, and loss of love and affection not to be a separate head.

8. In libel damage is presumed; in slander special damage must be proved outside the four classes, and Ratcliffe v. Evans relaxes the proof where specific proof is impossible.

9. General damages are not the same as non pecuniary damages, and the two divisions cut across one another.

10. The pleading rule protects the special damages; the general damages are protected by evidence gathered long before trial.