Damages

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Template:CivilProcedure In law, damages refers either to the harm suffered by a claimant in a civil action, or to the money paid or awarded to the plaintiff in compensation for such harm.

Generally, there are three kinds of damages: special damages, general damages, and punitive damages. Special damages are the enumerable or quantifiable monetary costs or losses suffered by the plaintiff, or the compensation therefore. For example, medical costs, repair or replacement of damaged property, lost wages, lost earning potential, loss of business, loss of irreplaceable items, loss of support, etc. General damages are items of harm or loss suffered, for which only a subjective value may be attached. Examples of this include personal injury, physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, loss of enjoyment of life, etc.

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[edit] Compensatory damages

Compensatory damages are damages awarded for civil cases. They are awarded to the successful party, in the case of the plaintiff, as a compensation for the pain undergone, and in the case of the defendant, for legal services and all hardships undergone during the trial. This is the rule in most countries other than the United States.

In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial. See American rule.

[edit] History

Among the Saxons, a price called Weregeld was paid for homicide by the killer, in part to the family of the victim, in part to the local king.

[edit] Statutory damages

Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award.

[edit] Punitive damages

Generally, punitive damages, which are termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious, and are over and above the amount of compensatory damages. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

In England and Wales, exemplary damages are limited to the circumstances set out by Lord Patrick Devlin in the leading case of Rookes v. Barnard. They are:

  1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
  2. Where the defendant's conduct was 'calculated' to make a profit for himself.
  3. Where a statute expressly authorises the same.

Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.

[edit] Restitutionary or disgorgement damages

In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.

In England and Wales the House of Lords case of Attorney-General v. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake, for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.

The basis for restitutionary damages is much debated, but can usually seen to be based on denying a wrongdoer any profit from his wrong. The really difficult question, and one which is currently unanswered, relates to what wrongs should lead to the availability of this remedy.

[edit] Nominal damages

On the other hand, nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin.

[edit] Economic damages

Economic damages in civil litigation are computed as the financial loss suffered by a person due to the wrongful actions of another person. The wrongful action may be either accidental, such as an auto accident, or deliberate, such as wrongful termination or harassment in employment situations. In a court of law, it is often useful for the lawyers for both the plaintiff and the defendant to employ economists to compute the value of the loss. The economists will not evaluate whether the action was wrongful, only how much money is required to return the plaintiff to the fiscal position he or she was in prior to the loss. In such a case, it is incumbent on both economists to fully disclose their methodology and how they reached their conclusions. The finder of fact will choose the result which is most in accord with the preponderance of the evidence, including any testimony given by the economist(s).

[edit] See also

de:Schadensersatz

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