Damages.
A term so often used in our every day world but with such unique versatility in its meaning. For instance, damages can be used to describe a physical injury sustained by a person or, among other things, a financial harm or loss suffered. It can also be used to describe an impairment with respect to the operation or function of one particular thing. In the context of litigation, the multiplicity of the term’s meaning is really no different. Quite simply, it is a loss or harm suffered by one party caused by the conduct (express, implied, or vicariously) of another, which can take the form of bodily harm, property damage or even damage to one’s reputation. However, what happens when you suffer a harm or a loss? How do you classify what you need in order recoup from this detriment? Generally, there are two different classes of compensatory damages: (1) pecuniary damages (also known as special damages) and (2) non-pecuniary (also known as general damages).
Pecuniary Damages (also known as Special Damages)
These types of damages are losses that can be clearly measured by an amount of money. These can include:
- Medical bills;
- Costs of care;
- Loss of earnings; and
- Property damage
Due to the ability to quantify the loss suffered by an aggrieved party, special damages are often perceived as the less complicated one to claim. In other words, they are the specific financial losses suffered and the expenses that were incurred from that. As a result, special damages can be accurately calculated to a specific dollar amount, such as the cost to repair a damaged property, lost income while a party was recovering, etc.
Non-Pecuniary Damages (also known as General Damages)
In contrast, general damages are damages that are more difficult to measure by way of monetary compensation. These can include past and future losses, such as:
- Pain and suffering;
- Emotional distress;
- Decreased quality of life;
- Damages to relationships
As a result, general damages can be difficult to quantify due to the subjective aspect of these claims, therefore making an assignment of a specific dollar amount tough. However, while there may not be an exact formula for quantifying non-pecuniary losses, there are some factors the Court often considers when deciding on an appropriate amount. This includes the nature and extent of the plaintiff’s injuries, the age and general health of the plaintiff prior to the incident and severity of the incident.
Duty to Mitigate
It is important to note that, regardless of which type of damage you decide to claim for, there is always a duty on the aggrieved party to mitigate their damages. Failure to appropriately mitigate any damage suffered, runs the risk of having the amount of damages sought for reduced significantly. For instance, say you owned a shed that was destroyed by your neighbour. Subsequent to the destruction, the shed was not repaired for another 6 months. 6 months later, you retained a shed repair man who quoted the cost of repair to be $10,000. It could be argued, by the Defendant, that you (the Plaintiff/aggrieved party) failed to satisfactorily mitigate your damages at the time of the incident, thereby making the special damages claimed, in the amount of $10,000, to be grossly inflated. Should the Plaintiff have exhausted reasonable efforts to mitigate, the cost of repair would have significantly less. However, while the Plaintiff maintains this duty to mitigate their damages, the onus rests on the Defendant to prove the Plaintiff has failed to exercise its duty reasonably. As every case in unique and will depend on the given facts of a scenario, it is always advisable to seek legal advice from experts in the legal field. To determine the strengths and weakness of your case, please contact Lakhan Tram LLP for more information.
