What is it worth A look at the types of harm in tort law
April 25, 2020
McLennan Ross LLP
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Before you go to court, you should know what relief the court is supposed to give you. Courts can grant a variety of damages or financial remedies to a party who has been wronged. The compensation that a court grants depends on the respective area of law. This article focuses on the harm that a party could suffer in a crime dispute. For information on the types of damages you can get in contract law, please see our previous blog post here.
Damage in tort
According to tort law, damage is supposed to bring a victim back to the position he was in before the defendant was wronged. Two types of damage that are common in criminal cases are damages and non-damages.
However, in order to receive damages, the plaintiff still needs to demonstrate that his injuries were not too distant, caused by the defendant’s conduct, and should not be reduced due to failure to mitigate damage.
The courts award damages to claimants in compensation for the damage suffered by the claimant. Compensation often falls into two sub-categories: general and special damages.
- General damage:
General Damages compensates a claimant for non-monetary aspects of their loss such as pain and suffering. For example, if John is at the stern and sustained injuries, he is entitled to compensation. The courts calculate his damage with reference to previous, similar case law. If other plaintiffs get $ 50,000 for injuries like John’s, John is likely to get $ 50,000 too.
- Particular damage:
Special damages compensate a claimant for financial aspects of his loss. The easiest way to understand this damage is to think of the expenses incurred as a direct result of the tort. For example, let’s say John has to pay the cost of pain medication, massage therapy, or perhaps renting a car out of pocket up front. John is also entitled to compensate for any financial losses he suffered as a result of the accident.
Courts can also grant non-compensatory damages such as punitive, aggravated and nominal damages.
- Punitive damages:
Courts award punitive damages when a party has committed outrageous behavior that the court seeks to punish and deter. For example, in one case an insurance company tried to avoid covering a family’s burned home by claiming that the family had committed arson. In this case, the Canadian Supreme Court ruled that high punitive damages were warranted.
Courts will only award punitive damages in extreme circumstances when the defendant’s behavior was particularly shocking. If damages deterred the defendant’s wrongdoing, punitive damages are not appropriate.
- Aggravated damage:
Courts award more severe damages if the defendant’s conduct has caused the plaintiff particular distress, grief or humiliation. It is therefore easy to confuse aggravated damage with punitive damages, but both serve different purposes. Punitive damages punish a wrongdoer, while heavy damages compensate a plaintiff. In some cases, the arrogant and unfriendly behavior of a defendant can justify increased harm but not reach punitive harm.
- Nominal damage:
The courts will award small “nominal” damages if the defendant has only marginally violated the plaintiff’s rights, the plaintiff has not proven a significant loss, or the plaintiff has not defused.
For example, if Carrie had hit Alice, Carrie would have committed the batterer’s illicit (and the crime of assault). Alice could sue Carrie for tort and seek damages. But if Alice was not seriously injured, she could only receive nominal damages.
Let’s say Nick spread rumors about his business competitor Olivia and sued him for defamation. Although Nick defamed her, Olivia could only receive nominal damages if Olivia cannot prove that the rumor caused her a loss.
When could courts deny harm to an injured claimant?
Even if a plaintiff has suffered injury, the court may deny harm that turns out to be too distant, not caused by the defendant’s conduct, or that the plaintiff has not mitigated.
Sometimes the link between a plaintiff’s harm and the defendant’s conduct is too distant. In these situations, it would not be fair to order the defendant to pay the plaintiff’s damages because the plaintiff’s injury was not reasonably foreseeable.
For example, in one case a man found a dead fly in a water bottle and developed a major depressive disorder as a result. He sued the water supplier for tort. The Supreme Court of Canada found that although the supplier was negligent, the damage suffered by the plaintiff was too small because it was not reasonably foreseeable that someone seeing a dead fly in their water bottle would have such a severe reaction. The court therefore refused to grant the plaintiff damages.
- Root cause:
Even if a plaintiff has suffered damage, he still has to prove that the defendant caused the damage. Courts generally use the “but-for” test: would the plaintiff have suffered the injury if the defendant had not acted? The plaintiff must demonstrate the probabilities (51% certainty or greater) that the defendant caused the loss.
For example, let’s say Mike hired a contractor to renovate his home. The roof collapsed during the construction process. If he sues the contractor, Mike has to prove that his roof would not have collapsed without the contractor’s actions. On the other hand, the contractor was able to prove that the roof was not strong enough to withstand the average snow load in winter. This evidence could convince the court that the snow load, not the contractor, caused the roof to collapse.
If so, the court would refuse to hold the contractor accountable and deny Mike compensation.
Even if the court finds that a plaintiff was right and the defendant owes him damages, the plaintiff must mitigate his damage. This means that the plaintiff must keep his losses as small as possible.
For example, if Rose is a doctor botching Liam’s operation and Liam endures pain and suffering as a result, he can sue Rose for tort of medical misconduct. However, let’s say Liam could have relieved his pain if he had attended massages and physical therapy regularly. The court could reduce Liam’s damages for failing to mitigate it. If treatments could have completely relieved his pain, the court could only award Liam nominal damages. Therefore, in order to protect his interests and his right to full recovery, Liam must adequately mitigate what he suffered.
If you’ve suffered an injury, there are a variety of damages and other remedies available to you to seek from the court. Talk to an attorney about your duty to mitigate damage and how to get the full amount of damage due to you.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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