Measure of Damages

Damages are money claimed by, or ordered to be paid to, a person as compensation for loss or injury sustained to him/her.

The purpose of damages in tort is generally to place the claimant in the position he/she would have been had the tort not taken place.  Damages in tort are quantified under two headings: general damages and special damages.

The determination of the true measure of damage in any individual case is seldom easy.  It depends primarily upon considerations of causation.

In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained.  In non-personal injury claims, like, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss.  However, even in such cases to be eligible for damages, the loss must be reasonably foreseeable and not too remote.

Though financial losses are usually simple to quantify, in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss.

General damages generally compensate the claimant for the non-monetary aspects of the specific harm suffered.  Examples of this include 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.  This is not easily quantifiable, and depends on the individual circumstances of the claimant.

In case of special damages, the claimant is compensated for the quantifiable monetary losses suffered by the plaintiff.

The measure of damages to be awarded for an injury to real property depends on whether the injury is permanent or temporary in nature, the proper measure for permanent injury being the difference between the value of the property immediately before and immediately after the injury.[i]  If an injury to property is temporary in nature, the proper measure of damages is the reasonable cost of the repairs necessary to restore the property to its original condition immediately prior to the injury plus the loss occasioned by being deprived of the use of the property.[ii]  The concepts of temporary and permanent injuries are mutually exclusive and damages for both may not be recovered in the same action.

Where an encroachment is so slight that a mandatory injunction for its removal is denied and the owner is left to his or her legal remedies, he or she should have an option to accept an award of damages adequate to cover the value of that portion of his or her property occupied by the encroachment.[iii]  Further, an aggrieved landowner may recover the cost of removal of an encroaching structure which is legally abatable, so long as such cost is not in excess of the diminution in value of the realty resulting from the wrong.[iv]

[i] Lone Star Development Corp. v. Reilly, 656 S.W.2d 521 (Tex. App. Dallas 1983)

[ii] Id.

[iii] Owenson v. Bradley, 50 N.D. 741, 197 N.W. 885, 31 A.L.R. 1296 (1924)

[iv] Barberi v. Bochinsky, 43 N.J. Super. 186, 128 A.2d 1 (App. Div. 1956)

Inside Measure of Damages