Assignment topic : calculation

of damages in tortious liability

Submitted to : Miss DR Sima

Nawaz

Submitted by : Ahsan Ullah

Roll number : 549

Date : 26.7.2022
 CONTENT

Introduction

Liquidated and liquidated damages

Kinds of damages
1. Contemptuous Damages

2. Nominal Damages

3. Ordinary Damages

4. Aggravated Damages

5. Exemplary Damages

6. Prospective Damages

Damages for the Nervous and

Mental Shock

Difference between damagr and

damages
Calculation of damage.

Introduction
Damages under tort law are referred to as a type of payment made to the victim by the person
who committed the tort.

Damages is frequently confused with damage. However, it should be understood that these
two words are very different from one another. Damages refers to the injury or loss that has
been caused, even if "damages" also refers to the recompense that has been granted or
requested.

A person must demonstrate that he has been harmed (that his legal rights have been violated)
in order to make a claim for damages; otherwise, he will not be able to do so. Two maxims can
be used to understand it:

Without any physical harm, there is still a legal injury, which is known as injuria sine damno.
When a person's legal rights are violated, he or she has the right to go to court to have those
rights upheld. Even though he didn't experience any losses, he can still sue for damages if his
rights were violated.

When there is physical harm but no legal harm, the phrase "damnum sine injuria" is used. This
means that the person cannot go to court to enforce his rights because he lacks those rights in
the absence of a legal injury.

It is notable at this juncture that, in general, losses can be distinguished from rewards.
Compensation is a wider category that covers payments rendered to an individual for any form
of loss or harm incurred due to illegal causes such as the possession of the property from
another party or regulatory infringement, termination of a job; moreover, penalties derive from
wrongs in motion.

Damages have acquired a great deal of importance, especially in the sense of commercial
transactions and as disciplinary remedies for the infringement of the rights of persons involved.

It is noteworthy at this point that gains and losses may typically be differentiated.
Compensation is a broad category that includes payments made to an individual for any type of
loss or harm sustained as a result of illegal causes, such as obtaining property illegally from
another party or violating regulatory requirements, losing one's job, etc. Additionally, penalties
result from wrongs that have already been committed.

Damages have grown in significance, particularly in the context of business transactions and as
punitive measures for the violation of parties' rights.

Kinds of Damages
The plaintiff is entitled to compensation from the defendant when he commits a wrong and
causes him to suffer loss or harm. Therefore, damages are the amount of money that the
plaintiff is entitled to obtain as compensation from the defendant (wrongdoer) for the harms or
losses he has incurred. As a result, the loss that led to the award of damages is the damage.
Damages include the following categories:

1. Contemptuous Damages

2. Nominal Damages

3. Ordinary Damages

4. Aggravated Damages

5. Exemplary Damages

6. Prospective Damages

Contempuous Damages
These damages are granted because it is believed that the defendant's lawsuit is over a
relatively minor matter, for which he or she shouldn't have gone before the court. Though
morally wrong in this case, the complainant may be legally correct. In some cases, the courts
award extremely little compensation. Damages that are deplorable are frequently referred to as
such.
Nominal Damages
Negligible damages are given in cases when the claimant's civil rights have been violated but
there has been no harm. Trespassing occurs when someone enters another person's property
without their consent and does so without causing any physical harm to the landowner. In this
situation, the judge may only award nominal damages, such as a few hundred rupees.

In Ashby v. White, the appellant wrongly omitted to record the complainant's properly
submitted vote during the English parliamentary elections. Since the candidate who would have
received his vote was chosen, the appellant did not lose. Along with court costs, the offender
was accountable for a total of 5 pounds.

Ordinary, Aggravated and Exemplary Damages

Regular damages are another name for compensatory damages. Ordinary damages are granted
to recompense the injured individual equally by giving him a cash reward equal to the harm he
suffered. When the judge increases the damages due to the way a tort was committed, it is
known as awarding aggravated damages. Therefore, a deliberate, spiteful, or excessively caring
act made during an attack may warrant a bigger reward. Such damages include aggravated
damages.

Exemplary damages are sometimes known as punitive, retaliatory, or compensatory damages.

The distinction made by Pearson L.J. is that these penalties are not intended to make up for the
complainant's loss; rather, they are "smart money," as it is known in the United States a means
of retaliation for the claimant and a deterrent to unpleasant behaviour towards others. The
overall idea of tort law, however, is at odds with this objective.

According to Lord Devlin, exemplary damages can be awarded in the following three
exceptional cases:

1. When a government servant's oppressive, arbitrary, or unconstitutional action has injured

the plaintiff, "though not when he is subjected to similar treatment by corporations or private
individuals," according to the law. Exemplary damages can be lawfully imposed whenever it is
necessary to educate a wrongdoer that tort does not pay, in particular when the defendant's
actions "have been intended by him to earn a profit for himself which may likely exceed the
amount payable by him to the plaintiff." 3. In situations where exemplary damages are
permitted by law.
The aforementioned norm has been observed in India. The recent case of Bhim Singh v. State of
J & K, in which Mr. Bhim Singh, an M.L.A., was detained and arrested to prevent him from
travelling to being present at the assembly session. The Supreme Court determined that it was
a case where exemplary damages in the amount of Rs. 50,000 should have been granted.

Prospective Damages
A tort not only causes immediate pain but also ongoing or future damages, such as when a
person is seriously injured and subsequently denied the chance to earn money in the future.
However, because public justice demands an end to lawsuits, common law demanded that
there should be just one lawsuit for all damages, both present and future.

Due to this, compensation is provided for both potential loss and existing injury in the form of
"prospective" damages. The case of Y.S. Kumar v. Kuldip Singh, in which the Excise and Taxation
Officer was the respondent, is noteworthy in this regard. He was struck by a car and his ankle
was physically hurt. Due to the wounds, which reduced his ability to

High Court of Punjab and Haryana paid a prospective reward of Rs. 7,200 estimated at Rs. 50
p.m. In regards to physical injury and lack of enjoyment of everyday life for a period of 12 years,

Thus, it has been shown that in one and the same action, the damages are measured. For the
same cause of action, there should not be more than one suit.

two exceptions to the above rule:

(a) Different acts are allowed if the same wrongdoing breaches two different rights. (For
instance, in Brunsden v. Humphrey, the appellant was an automobile driver. Due to the
defendant's servant's carelessness, he suffered significant injuries and his automobile was
totaled. After receiving compensation for the damage to the car, he filed a separate lawsuit for
bodily harm. Held: Because there were different grounds of action, the latter accusation could
be maintained.)

(b) Because the tort is an ongoing one, subsequent sue for personal injuries.

Damages for Tort

 1. The court may rationally take into account the reason a tort was committed
while determining the amount of damages. Evidence of deliberate purpose is admissible in
fraud cases. In awarding damages, the court considered the defendant's illegal intent to poison
the plaintiff's poultry by dumping contaminated barley on his land.

2. When property losses are involved, only damages that are proportionate to the
actual financial harm incurred are awarded, regardless of whether the damages are actual or
assessed in money. However, when absolute rights are violated, a complaint is given minimal
compensation, not because he has suffered any losses, but rather because his rights are
absolute. When there is injury to the person or feelings and there is evidence of dishonesty,
malice, cruelty, etc., the injury is exacerbated, and the claimant asks for aggravated damages—
even when they are out of all proportion to the complainant's actual loss. If the suit is alleged to
be a tort action or is illegal, exceptional damages are also permitted in a tort lawsuit against the
State or its agents. They are also permitted against a defendant who, by virtue ofThe reward
from committing the offence may be greater than the normal fine the criminal is required to
pay. Except in a lawsuit for violating the intent of marriage, special damages cannot be
collected for a contract violation.

Injunction
A judicial order known as an injunction forbids the commission, replication, or continuation of a
defendant's unlawful act. In order to be eligible for an injunction, he must demonstrate that
there is either harm or a fear of harm. The potential for major injury or irreversible disability
must be there right away. A preventive injunction shall only be granted if the defendant has
violated or may violate any civil right or equal right of the complainant, not merely because
doing what the defendant wants to do is immoral. The court may need to balance two rights in
such cases, e.g. Until agreeing to issue an injunction, a right to privacy and a right to freedom of
speech.

An injunction may be granted to prevent waste, trespass, or the continuance of nuisance to

dwelling or business houses, to right of support, to right of way, to the highway, etc.; or the
infringement of patent rights, copyrights and trademarks; or the publication of trade secrets; or
the publication of manuscripts letters, and other unpublished matter.

Damages is frequently mistaken with damage. However, it should be understood that these two
words are very different from one another. Although "damages" refers to the compensation
granted or requested, "damage" refers to the asserted or granted hurt or loss. Damage could
be indirect or financial (which may apply to monetary benefit in situations where there is a lack
of reputation, physical or emotional injury or suffering).

It is noteworthy at this point that gains and losses may typically be differentiated. A broader
definition of compensation includes payments made to an entity for any type of loss or harm
sustained as a result of factors like taking possession of someone else's property or regulatory
violations, eliminating jobs, or the aggrieved party seeking compensation. Penalties also result
from mistakes that are subject to legal action.

Damages have gained much significance especially among commercial transactions, and as
punitive measures for violation of rights of concerned persons. The nature of damages granted
across various areas varies significantly.

For example,s are popularly granted in cases of tort or on breach of contract. This paper
broadly covers damages in cases of contractual breaches in India, with a brief overview of claim
and grant of damages in cases of torts, indemnity contracts, arbitral proceedings, sale of goods,
consumer law and intellectual property rights (copyrights, trademarks and patents).     

                                          

Two forms of Damages

There are two forms of granting damages; first is Liquidated Damages and the second one is
Unliquidated Damages.

Liquidated Damages
Liquidated Damages means those damages which are predetermined. And based on such
predetermination the person is given damages. For example, in Contracts, both parties set an
amount which either of them would have to pay in case of the breach of contract.

In India, liquidated damages are recognized under Section 73 and Section 74 of the Indian
Contract Act, 1872. “Sec. 73 notes that” when a contract has been breached, the aggrieved
party is entitled to claim restitution or other harm or injury necessarily incurred on it during the
ordinary period of breach of contract or already recognised by the parties to the contract when
entering into the contract.
Sec 74 states that ‘If a contract has been broken and whether a sum is specified in the contract
as the amount to be paid for the violation, or whether the contract includes some other liability
clause, the party complaining about the violation shall be entitled to obtain fair compensation
from the party that has violated the contract, whether or not the real damage or injury is found
to have been incurred thereby.

The parties themselves may decide how much should be charged in the case of a violation,
specifically because penalties are often difficult to determine. Courts will impose a rule of
liquidated damages as long as it is impossible to assess the exact amount of harm (in which case
testimony of it is simply rendered at trial) and the quantity is fair in terms of the anticipated or
exact harm. The surplus is considered a penalty if the liquidated quantity is unreasonably high,
which is claimed to be against a public policy which unenforceable. 

Unliquidated Damages
Unliquidated Damages under Tort means those damages which are not predetermined and are
based upon the evaluation of loss the person has suffered. Unliquidated Damages are awarded
in the case of Torts as both of the parties are unaware of the potential loss’s compensatory
equivalence.

For example, A trespassed on B’s property. B caught him and A ran off. There is no
predetermined amount that has been fixed for the trespasser. Court will in such cases grant the
damages based on the facts.

Damages for the Nervous and Mental Shock

Nervous shock is the onset of a mental illness induced by witnessing another’s careless
behaviour or the effects of it. It must be defined as more than sadness or despair, i.e. an actual
mental disorder, for the purposes of prevailing in a suit.

Nicholas N Chin says the nervous shock is “..” The name applies to a broad variety of recognised
psychological disorders, such as phobic anxiety, neurosis and post-traumatic stress disorder,
which are more than just sadness, frustration or unhappiness.
As part of a therapeutic trend after railway crashes, John Eric Erichsen described nervous shock
injuries. Many of the railway collisions, Erichsen said, lead to “severe and prolonged” nervous
shock, “weariness,” “cramps,” and other symptoms. In Alcock & Others v Chief Constable of
South Yorkshire Police, Lords Keith and Oliver feels that the word nervous shock is a
“misleading” one,

Since it actually protects a wide variety of possible claims in the area of negligence. Any doubt
remains as to whether the courts will reliably assess the degree of a psychological disability in
terms of the required level of healing that may or should be awarded. In the 19th Century case
of Lynch v Knight, this is seen the statute can not value emotional pain or discomfort and does
not claim to cure because the illegal act accused of induces it alone.

Especially in today’s world, where since the time of the Lynch decision rehabilitation on the
basis of solely mental disability, there have been so many medical advancements, it should
actually be no more difficult than rehabilitation with a physical injury.

Whether the market inflation influence the Damages?

Generally, the market inflation grows with passing years. So does Court takes it as a
consideration while awarding Damages? There are two case laws that substantiate the
jurisprudence in this matter:

In the case of Jaimal Singh v. Jawla Devi, it was decided that the Court will have to consider the
currency valuation and market inflation while deciding the damages.

The court in Kerala State Electricity Board v. Kamalakshy Amma decided that market inflation
should be a factor while deciding the compensation. Court also upheld the above-cited case of
Jaimal Singh.

FAQs

What is damage and damages?

Damages has a different connotation than damage and is not the same thing. By "loss or injury
to a person or property," we mean "damage." It has no plural form and is an uncountable
singular noun. "Money claimed by, or required to be paid to, a person as recompense for loss or
harm" is the definition of damages.

What distinguishes damages from compensation?

Damages are given for sustaining harm, whereas compensation has a greater standing.
By providing financial remedy for the harm inflicted, compensation seeks to return the injured
party to the pre-injury state.