Damages Awards That Are Intended to Make the Victim Whole Again Are Called What
Types of Damages in Civil Litigation
Damages are monetary awards. In in a legal sense, "damages" refers to monetary compensation that is claimed by a person or awarded past a court in a ceremonious action to a person who has been injured or suffered loss because of the wrongful deport of another political party. The Supreme Court of Canada has held: "Damages are a monetary payment awarded for the invasion of a correct at mutual law". (Canson Enterprises Ltd. v. Boughton & Co. [1991] 3 South.C.R. 534 at para. 39, per La Forest J.)
The purpose of amercement is, in a tort activity, to restore an injured political party to the position he was in before being harmed, and, in a contract action, to place the innocent party in the position he would have been in had the contract been performed. Consequently, damages are mostly remedial rather than preventive or punitive.
Depending on the nature of the loss or injuries, y'all may have several different remedies available to you lot, including damages. You will want to consider these various remedies when discussing with your lawyer your legal options. See Some Things You Should Consider before Deciding Whether To Sue and A Customer'southward Step-by-Step Guide to Commencing a Civil Action.
The law of damages is a comprehensive subject about which several texts have been written. Briefly, definitions of various main types of damages are provided below.
Compensatory Damages (also called "Bodily Damages")
Amercement awarded for bodily loss, to place the plaintiff in a position that she would take been in had she not suffered the wrong complained of. The aim is to "make the injured party whole again".
Speaking about a tort action, the Supreme Court of Canada has stated: "The general principles underlying our system of damages suggest that a plaintiff should receive total and fair compensation, calculated to place him or her in the aforementioned position as he or she would accept been in had the tort non been committed, insofar as this can exist achieved by a monetary award. This principle suggests that in calculating damages nether the pecuniary heads, the measure of the damages should be the plaintiff'south actual loss." Ratych five. Bloomer, [1990] 1 South.C.R. 940 at para. 71, per McLachlin J.; run across also Livingstone five. Raywards Coal Co., [1911] A.C. 301 at 307 (P.C.).
In a alienation of contract example, the court might well order the breaching party to recoup the not-breaching party for losses resulting from the breach. A accused is liable to a plaintiff for all the natural and direct consequences of the accused'southward wrongful act. Remote consequences of a defendant'south act or omission cannot form the footing for an award of compensatory damages.
In a breach of contract, the measure of damages is the amount of money that would put the plaintiff in the position he would be in had the contract been performed. Wertheim five. Chicoutimi Pulp Co., [1911] A.C. 301 at 307 (P.C.); Hamilton five. Open up Window Bakery Ltd., 2004 SCC ix (CanLII), [2004] one S.C.R. 303; Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para. 45.
The difference between the tort and contract tests is important. In a tort activeness, the courtroom determines what losses the plaintiff would accept avoided has the incident not happened. In a contract activeness, the court considers the benefits the plaintiff would accept gained had the contract been completed. To illustrate, in a personal injury action (tort), the court tries to compensate the plaintiff for injuries and losses. In a sale of goods action (contract), the courtroom awards the plaintiff the profit he would take earned had the transaction been carried out.
The two types of compensatory damages for pecuniary loss are:
- Expectation Damages: in a breach of contract case, for instance, damages intended to cover what the injured party expected to receive from the contract. Calculations are normally straightforward as they are based on the contract itself or marketplace values.
- Consequential Damages:may be awarded when the loss suffered by a plaintiff is non caused direct or immediately by the wrongful carry of a defendant, but results from the defendant's activity instead. Two examples follow.
In a alienation of contract example, for instance, consequential damages are intended to reimburse the aggrieved party for indirect damages likewise the contractual loss; for example, loss of business profits resulting from undelivered goods. They must "flow from the breach", and exist reasonably foreseeable upon entering into the contract.
In a tort case, for instance, if at the local gym a defendant drops a barbell on the foot of a plaintiff who is a construction worker, the plaintiff could recover consequential amercement for the loss of income resulting from the injury. These consequential damages are based on the resulting harm to the plaintiff's personal income. They are not based on the injury itself, which was the straight result of the defendant'due south comport.
Full general Amercement (also called " Non-Pecuniary Damages")
Damages for non-budgetary losses suffered by a plaintiff. In contrast to special damages (see below), these damages are chosen "general" because they cannot be assessed exactly. General damages have long been characterized equally those that the law presumes to flow from every breach of contract or other invasion of the plaintiff's rights.
In a personal injury action, for instance, examples of such losses suffered include pain, suffering, disfigurement, loss of enjoyment of life and loss of amenities. Non-pecuniary damages are compensation for past, nowadays and futurity losses, subject to the upper limit for such an award established by the Supreme Court of Canada. In determining fair bounty in the particular circumstances of a case, courts look at such factors every bit the plaintiff's historic period, the nature of the injury, the severity and duration of the pain, the level of the disability and the loss of lifestyle or impairment of life.
Pecuniary Damages (likewise called "Special Damages")
Damages that can be exactly measured in money. Amercement intended to compensate a plaintiff for a quantifiable budgetary loss. Special amercement ways the particular damage (beyond the full general damage) that results from the item circumstances of the example. Examples of such losses include: medical bills, lost wages, and repair costs.
Liquidated Damages
Damages agreed upon by the parties entering into a contract, to be paid by a party who breaches the contract to a non-breaching party. These are bachelor when damages may exist difficult to foresee and must exist a fair approximate of what the damages might be if in that location is a alienation. Liquidated damages may be used when it would exist hard to testify the actual damage or loss acquired past a alienation. The amount of liquidated damages must be a reasonable estimate of the bodily damages that a alienation would cause. A contract term setting unreasonably large or disproportionate liquidated damages may be void considering it constitutes a penalty or penalty for default.
Punitive Damages (also called "Exemplary Damages")
Intended to punish the breaching actors and to deter them from committing future breaches. Punitive amercement are awarded not to compensate a plaintiff for injury or loss suffered but to penalize a defendant for especially egregious, wrongful conduct.
At common law, punitive damages can be awarded in any ceremonious suit in which the plaintiff proves that the accused's conduct was "malicious, oppressive and high-handed [such] that it offends the court's sense of decency": Colina five. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 196. "The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour": Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36.
In Whiten five. Pilot Insurance Co., the Supreme Court of Canada defined a rational punitive damages laurels as existence proportionate to the blameworthiness of the defendant'southward conduct, the vulnerability of the plaintiff, the impairment or potential damage directed specifically at the plaintiff, the advantage wrongfully gained by the defendant, and the need for deterrence, all with a view to the other penalties assessed against the defendant considering of its misconduct. In that example the Supreme Court set a high-water mark of C$ane-million for punitive damages against insurers. See likewise Vorvis 5. Insurance Corp. of British Columbia, [1989] one South.C.R. 1085.
Aggravated Damages
Damages awarded to compensate a plaintiff for suffering intangible injuries or damages equally a result of the defendant's actions. It is not the amercement that are aggravated but the injury. The harm honor is for aggravation of the injury by the defendant'due south misbehaviour. Because of the defendant's conduct, the measure out of damages is increased. The plaintiff'south losses are non-pecuniary.
Intangible elements such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, fearfulness of repetition. wounded pride, damaged self-confidence or cocky-esteem, loss of faith in friends or colleagues, and like matters that are caused by the defendant's carry.
Aggravated damages by definition will generally increase damages assessed nether the general rules relating to the cess of damages. Aggravated damages are compensatory and may only be awarded for that purpose. Aggravated amercement are dissimilar from punitive damages, which may just be awarded in circumstances where the accused'southward conduct is of such nature that it merits punishment. Aggravated amercement volition oft cover conduct that could too be the subject area of punitive amercement, but the role of aggravated damages remains compensatory. (Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085.)
In tort law, aggravated damages resemble amercement for "pain and suffering", one of the conventional subheads of non-pecuniary loss. The distinction between them lies mainly in causal sequence. Aggravated damages compensate for distress caused by the grapheme of the defendant's wrongdoing, whether pre- or post-injury. Damages for hurting and suffering compensate for distress caused by the personal injury that results from the wrongdoing.
Nominal Damages
Token damages awarded to redress a violation of a legal correct that the law deems necessary to protect, even if there has been no bodily harm or monetary loss. By granting nominal amercement, the court affirms that a legal right has been violated. While the plaintiff has no correct to existent damages, the court gives her the right to a judgment because of her legal correct has been infringed (Mediana (The) [1900] A C 113 at 116 (H Fifty.), per Lord Halsbury, L.C.). Nominal amercement are by and large recoverable by a plaintiff who successfully establishes that he has suffered an injury acquired by a defendant'due south wrongful conduct, but cannot show a loss that tin be compensated. For example, an injured plaintiff who proves that a defendant'due south actions caused the injury but fails to submit medical records to evidence the extent of the injury may be awarded only nominal amercement. The amount awarded is generally a small, symbolic sum, such as ane dollar. Nominal amercement are available whether the action is in contract or tort.
Restitutionary Damages
These are not really legal damages, but rather are an equitable remedy to prevent a political party from being unjustly enriched. For example, in a contracts case, if 1 party has delivered goods just the other political party failed to pay, they may be entitled to restitutionary damages to prevent the unjust enrichment.
Restitution is a distinct body of police governed past its own developing system of rules. Breaches of fiduciary duties and breaches of conviction are both wrongs for which restitutionary relief is often appropriate. (International Corona Resources Ltd. 5. LAC Minerals Ltd., [1989] 2 S.C.R. 574 at para. 65, 66, per LaForest J.)
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