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 going to court, you should know what relief you want
Court to give you. Courts can award a variety of damages, or
financial redress for a party who has been wronged. The damage a
The court is awarded differently depending on the applicable legal area. This
The article focuses on the harm that a party could suffer in a tort
Argument. For the types of damages you can get in contract law,
Please read our previous blog post
Damage in tort
According to tort law, damage should be returned to the injured party
Position in which it was before the defendant was wronged. Two kinds of
Damage that often occurs in criminal cases is compensatory and
However, in order to receive damages, the plaintiff still needs to have
to prove that their injuries weren't too far away, caused by
the conduct of the accused and should not be based on a
Courts grant plaintiffs damages as compensation for
Damage suffered by the plaintiff. Compensation losses often fall into
two sub-categories: general and special damage.
General Damage Compensates a plaintiff for non-monetary aspects of
their loss, like pain and suffering. For example, if it is John
Heck and sustaining injuries, he is entitled to damages as a
Result. Courts calculate its damage with reference to previous,
similar case law. When other plaintiffs received $ 50,000 for injuries
like John's, John will likely get too
Special damages compensate a plaintiff for financial aspects of
her loss. The easiest way to understand this damage is to
Think of out-of-pocket expenses
Result of the illegal act. For example, let's say John has to do this
Pay the cost out of pocket for pain medication or upfront
Massage therapy or maybe renting a car. John is too
entitled to compensate for these financial losses he incurred as a result of
Courts can also award non-compensatory damages, such as
Punitive, aggravated and nominal damages.
Courts award punitive damages if one party has committed outrageous
Behavior that the court seeks to punish and deter. For example,
In one case, an insurance company tried to avoid: a
Family house that burned down claiming the family
Arson committed. In this case, the Supreme Court of Canada ruled
that high punitive damages were justified.
Courts only award punitive damages in extreme circumstances
when the defendant's behavior was particularly shocking. If
Compensation will deter the defendant's injustice
Behavior, punitive damages are not appropriate.
- Aggravated damage:
Courts grant increased damages if the
The behavior of the defendant caused the plaintiff in particular
Distress, grief, or humiliation. So there are aggravated damages
easily confused with punitive damages, but the two serve differently
Purposes. Punitive damages punish a malefactor as it intensifies
Compensation for damages compensates a plaintiff. In some cases, a defendant
Arrogant and unfriendly behavior can justify serious damage
Fall below punitive damages.
- Nominal damage:
Courts will award small "nominal" damages
Award if the defendant only slightly violates the
The plaintiff could not prove the rights of the plaintiff
meaningful loss, or not mitigating the plaintiff.
For example, if Carrie had hit Alice, Carrie would have done it
committed the illicit act of the battery (and the offense of
Attack). Alice could sue Carrie for tort and seek damages. But if
Alice did not suffer any serious injury, she could only receive
Let's say Nick is spreading rumors about his business
Competitor Olivia, and she sued him for defamation. Even though
Nick defamed her when Olivia can't prove the rumor was caused
If she suffers a loss, she may only receive nominal compensation.
When could courts reject an injured plaintiff?
Even if a plaintiff has suffered an injury, the court can deny it
Damage that turns out to be too far away was not caused by the
Conduct of the defendant or about which the plaintiff has not taken action
Sometimes the link is between a plaintiff
Injury and behavior of the accused is too far away. in the
in these situations, to order the defendant to pay the plaintiff
Damage would not be fair as the injury was to the plaintiff
not reasonably foreseeable.
For example, in one case a man found a dead fly in a water bottle
and developed major depression as a result. He sued them
Water supplier in illegal act. The Supreme Court of Canada found that
although the supplier was negligent, the damage is to the plaintiff
were too remote as it was not reasonably foreseeable that someone would
Anyone who saw a dead fly in his water bottle would suffer so badly
Reaction. The court therefore refused to grant the plaintiff
- Root cause:
Even if a claimant has suffered harm, he still has to do so
prove that the defendant caused this damage. Courts in general
Use the "but for" test: but for that of the defendant
Conduct, would the plaintiff have suffered the injury? The
The claimant must demonstrate the balance of probabilities (51%)
Certainty or more) that the defendant caused the loss.
For example, let's say Mike hired a contractor to do the renovation
his house. The roof collapsed during the construction process. When
He's suing the contractor, Mike has to prove it, but for that
The roof would not have collapsed if the contractor had acted
On the other hand, the contractor was able to show that the roof was not there
strong enough to withstand the average winter snow load. This
Evidence could convince the court that the snow load and not the
Contractor, collapsed the roof.
In this case the court would refuse to hold the contractor
responsible and deny mike damage.
Even if the court finds that a plaintiff was right,
and the defendant owes them damages, the plaintiff must mitigate
their damage. This means that the plaintiff must keep his losses as
minimal as possible.
For example, if Rose is a doctor botching Liam's operation,
and Liam endures pain and suffering, he can sue Rose
for the unlawful act of medical misconduct. But let's say Liam
could have relieved his pain if he had attended massages regularly and
Physical therapy. The court could reduce Liam's damages because
he couldn't mitigate. If treatments could have relieved his pain
Overall, the court could only award Liam nominal damages.
To protect his interests and his right to full recovery,
Liam needs to really mitigate what he suffered.
If you've suffered an injury, there are a variety of searches to choose from
Compensation and other legal remedies from the court. Consider speaking to a
Attorney about your duty to mitigate and how you can restore the full
Amount of damage to which you are entitled.
The content of this article is intended to provide a general overview
Guide to the subject. Expert advice should be obtained
about your particular circumstances.
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