Before you go to court, you should know what relief you want the court to give you. Courts can award a wide variety of damages, or financial remedies, to a party that suffered a wrong. The damages a court will award vary depending on the applicable area of law. This article will focus on the damages a party might receive in a tort dispute. For the types of damages you can receive in contract law, please refer to our earlier blog post here.
Damages in Tort
In tort law, damages are meant to return an injured party to the
position it was in before the defendant’s wrong. Two types of
damages that frequently appear in tort cases are compensatory and
In order to obtain damages, however, the plaintiff will still have to prove that their injuries were not too remote, were caused by the defendant’s behaviour, and should not be reduced due to a failure to mitigate.
Courts award plaintiffs compensatory damages as recompense for
harm the plaintiff suffered. Compensatory damages often fall into
two sub-categories: general and special damages.
General damages compensate a plaintiff for non-monetary aspects of their loss, such as pain and suffering. For example, if John is rear-ended and suffers injuries, he is entitled to damages as a result. Courts will calculate his damages by referencing previous, similar case law. If other plaintiffs received $50,000 for injuries like John’s, then John will likely also receive $50,000.
Special damages compensate a plaintiff for financial aspects of their loss. The simplest way to understand these damages is to think of out of pocket expenses that are incurred as a direct result of the tort. For example, let’s say John has to the pay the expenses up front out of his own pocket for painkillers or massage therapy or perhaps the rental of a car. John is also entitled to recover these financial losses he incurred due to the accident.
Courts might also award non-compensatory damages such as punitive, aggravated, and nominal damages.
Courts award punitive damages when a party has committed egregious behaviour which the court wishes to punish and deter. For example, in one case an insurance company tried to avoid covering a family’s home which burned down by claiming the family committed arson. In that case, the Supreme Court of Canada held that a high punitive damages award was justified.
Courts will only award punitive damages in extreme circumstances when the defendant’s behaviour was particularly shocking. If compensatory damages will deter the defendant’s wrongful behaviour, then punitive damages are not appropriate.
- Aggravated Damages:
Courts award aggravated damages where the defendant’s conduct has caused the plaintiff particular distress, grief, or humiliation. Aggravated damages are therefore easily confused with punitive damages, but the two serve different purposes. Punitive damages punish a wrongdoer, whereas aggravated damages compensate a plaintiff. In some cases, a defendant’s high-handed and unkind behaviour may justify aggravated damages yet fall short of punitive damages.
- Nominal Damages:
Courts will award a small, “nominal” damages award when the defendant only slightly infringed the plaintiff’s rights, the plaintiff failed to prove a meaningful loss, or the plaintiff failed to mitigate.
For example, if Carrie punched Alice, then Carrie would have committed the tort of battery (and the criminal offence of assault). Alice could sue Carrie in tort and seek damages. But if Alice did not suffer a serious injury, she might only receive nominal damages.
Similarly, let’s say Nick spread rumours about his business competitor Olivia, and she sued him for defamation. Even though Nick defamed her, if Olivia fails to prove that the rumour caused her a loss, she might only receive nominal damages.
When might courts deny an injured plaintiff’s damages?
Even if a plaintiff suffered an injury, the court may deny damages that prove too remote, were not caused by the defendant’s conduct, or which the plaintiff took no steps to mitigate.
Sometimes the connection between a plaintiff’s injury and the defendant’s conduct is too far removed. In these situations, ordering the defendant to pay the plaintiff damages would not be fair 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 major depressive disorder as a result. He sued the water supplier in tort. The Supreme Court of Canada found that although the supplier was negligent, the plaintiff’s damages were too remote, as it was not reasonably foreseeable that someone who saw a dead fly in his water bottle would suffer such a severe reaction. The court therefore refused to grant the plaintiff damages.
Even if a plaintiff suffered damages, they still need to prove that the defendant caused those damages. Courts generally apply the “but-for” test: but for the defendant’s conduct, would the plaintiff have suffered the injury? The plaintiff must prove on the balances of probabilities (51% certainty or more) that the defendant caused the loss.
For example, let’s say Mike hired a contractor to renovate his house. During the construction process, the roof caved in. When he sues the contractor, Mike needs to prove that but for the contractor’s actions, his roof would not have caved in. On the other hand, the contractor could show the roof wasn’t strong enough to withstand the average winter snow load. This evidence could convince the court that the snow load, and not the contractor, caused the roof to cave in.
In this case, the court would refuse to hold the contractor responsible and deny Mike damages.
Even if the court determines a plaintiff was in the right, and the defendant owes them damages, the plaintiff must mitigate their damages. This means the plaintiff must keep their losses as minimal as possible.
For example, if Rose is a doctor who bungles Liam’s surgery, and Liam endures pain and suffering as a result, he can sue Rose for the tort of medical malpractice. However, let’s say Liam could have reduced his pain if he regularly attended massage and physiotherapy. The court might reduce Liam’s damages because he failed to mitigate. If treatments could have alleviated his pain entirely, the court might only award Liam nominal damages. Therefore, to protect his interests and his right to full recovery, Liam must properly mitigate what he suffered.
If you have suffered an injury, you can seek a wide variety of damages and other remedies from the court. Consider speaking to a lawyer about your duty to mitigate and how you can recover the full amount of damages to which you are entitled.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.