DAMAGES

Contents

4.0       Introduction

5.0       Objectives

• Main Content
• Causation of Fact
• Remoteness of Damage
• Damages

7.0       Conclusion

8.0       Summary

9.0       Tutor Marked Assignment

10.0     References and Further Readings

INTRODUCTION

This is the third leg of proof required to establish negligence. If there is a duty and a breach of it but no injury or damage can be proved, an action in negligence will fail. If there is damage, it must be traceable to the breach. The connection between the defendant’s conduct and the plaintiff’s injury raises a congeries of problems which are conventionally canvassed in terms of remoteness of “damage” or proximate cause.

The other issue is to what extent, the defendant should have to answer for the consequences which his conduct has actually helped to produce. There must be a reasonable connection between the harm threatened and the harm done.

OBJECTIVES

The purpose of this unit is to enable you to:

• understand the term cause-in-fact i.e. whether the defendant’s culpable conduct was a causally relevant factor;
• the ‘But for’ Test;
• multiple causes;
• successive injuries;
• proximate cause;
• direct consequences

MAIN CONTENT

After establishing that a duty of care is owed to him and there was a breach of same, the plaintiff must further establish and prove that he suffered damage which was not too remote as a result of the breach.

Damage constitutes consensus in fact and causation in law (i.e. remoteness).

Causation of Fact

This deal with the question whether it is a matter of fact that the damage was caused by the breach of duty. The approach mostly accepted by the court for assessing whether the defendant breach of duty is a factual cause of the plaintiff’s damage is (BUT FOR) test i.e. whether the damage suffered by the plaintiff would not have happened or occurred “but for” the breach of duty.

In Benett v. Chelsa and Kersington Hospital Management Committee (1969) 1QB 429, the plaintiff’s husband after taking tea complained of vomiting for 3 hours, he later in the night went to the defendant’s hospital where the nurse on duty consulted the doctor on telephone. The latter informed the plaintiff to go and consult his own doctor the next morning. The plaintiff’s husband later on the same day died of arsenical poisoning.

In an action for negligence brought against the hospital for the act of its servant, it was held that in failing to examine the deceased, the doctor was guilty of breach of duty of care, but this duty was, however, held not to be the cause of the death. This breach was not held to be the cause of the death because even if the deceased was examined, it could have been impossible to save his life. Thus, it could not be said that:

“….. but for the doctor’s negligence, the deceased would have lived”

Remoteness of Damage

This is known as concession in law. The question of remoteness arises only after concluding the question in fact. The essence of concession in law is to avoid the situation where the defendant liable ad infinitum (indefinitely); for all the consequences of the wrongful conduct. In certain cases, consequences of the defendant’s tortuous conduct would be considered too remote if his wrongdoing to impose on him responsibilities for those consequences. The court, therefore, imposes the cut-off point beyond which the damage is said to be too remote.

An independent event which occurred after breach of duty and which contributed to the  plaintiff’s damage may break the chain of causation, so as to make the defendant not liable to any damage that occurs beyond this point. Where this occurs, the event is void to be novus actus intervenes.

In Monye v. Diurie (1970) NMOR 62, the plaintiff was knocked down as a result of careless driving of a lorry by the defendant. He suffered injury to his leg and was rushed to the hospital almost immediately. However, before completion of his treatment and against the doctor’s medical advice, he discharged himself only to return after two days. The leg was infected and consequently it was amputated.

A claim for the loss of the leg brought against the defendant by the plaintiff failed because, though, it was forceable that the plaintiff would as a result of the accident sustained injury.  It was not foreseeable that the defendant would against medical advice leave the hospital for two days leading to infection that necessitated the amputation of his leg. This was held to be too remote and the defendant was not held liable.

Damages

As we have seen, the primary remedy for a tort is damages, the purpose of which is normally to compensate the plaintiff for the harm he has suffered as a result of the defendant’s tortuous conduct. This unit is concerned principally with the measure (or assessment) of damages, i.e. with the methods by which the court calculates the amount (the quantum) of compensation to which the plaintiff is entitled in a given case (Okafor v. Okitiakpe (1973) 2 S.C. 49, at p. 56; (1973) 3 E.C.S.L.R. 379, at pp. 382, 383, Dumez (Nig.) Ltd. V. Ogboli (1972) 3 S.C. 196 at pp. 204, 205: (1973) 3 U.I.L.R. 306 at p. 366).

Since the mode of assessment of damages differs from one tort to another, and according to whether the action is for personal injuries or damage to property, it will be necessary to consider the applicable principles of law with respect to each tort separately. First, however, the different kinds of damages must be stated briefly.

Compensatory Damages

This is the normal kind of damages awarded. Its purpose is to compensate the victim of a tort for the injury he has suffered, and it seeks to put him as far as possible in the position he would have been in had the tort not been committed. (Anumba v. Shohet (1965) 2 All N.L.R. 183, at p. 186).

Nominal Damages

Nominal damage are awarded in those cases where the plaintiff establishes a violation of his rights by the defendant, but he is unable to show that he suffered any actual damage as a result of the defendant’s tort. Nominal damages are, therefore, most often awarded for those torts which are actionable per se, such as trespass and libel, and where the plaintiff can show no actual damage. (McGregor, Damages para. 308).

Nominal damages may also be awarded where the fact of damage is proved, but no evidence is given as to its extent, so that the assessment of compensatory damages is virtually impossible. (Akano v. National Electric Power Authority (1977) 3 CCHCJ 479).

Exemplary (or punitive) Damages

This class of damages is intended not to compensate the plaintiff but rather “to punish the defendant and to deter him from similar behaviour in the future”. Exemplary damages is punitive damages and it is awarded where a party to the suit can show or establish by evidence that the injury or loss he has suffered is due to the malicious act of the party against whom he is claiming the exemplary damages.

In order to justify the award of exemplary damages, it is not sufficient to show merely that the defendant has committed a wrongful act. The conduct of the defendant must be high-handed, insolent, vindictive or malicious showing a contempt of the plaintiff’s right or disregard of every principle which actuates the conduct of a gentleman. See J.M. Johnson vs. Mobil (1959) WNLR page 128 at 134 and William vs. Daily Times (1990) 1 NWLR part 124 page 31. Winfield and Jolowicz , op. cit. p. 593.

It is now established that exemplary damages may be awarded only in the following three circumstances.

• where the plaintiff has suffered from oppressive, arbitrary or unconstitutional action by a servant of the government (Rookes v. Barnard (1964) A.C. 1129, at p. 1226, per Lord Devlin; Garba v. Lagos City Council (1974) 3 CCHCJ 297, at p. 309; Oguche v. Iliyasu (1971) N.N.L.R. 157, at p. 167;
• where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and
• where statute so (Ibid. at pp. 1226, 1227, See e.g. Drane v. Evangelou (1978) 1 W.L.R. 455 Cassell & Co. Ltd. V. Broome (1972) A.C. 1027.

Aggravated Damages

These may be awarded where the defendant’s motives and conduct were such as to aggravate the injury to the plaintiff. They are a species of compensatory damages in that their purpose is to compensate the plaintiff for the injury to his feelings of dignity and pride, e.g. in cases of insolent and high-handed trespass to land (Dosunmu v. Lagos City Council (1966) L.L.R. 63) or to the person. (Nwankwa v. Ajaegbu (1978) 2 L.R.N. 230).

Contemptuous Damages

This type of damages may be awarded where the plaintiff establishes his right, but in the court’s opinion the action should never have been brought, e.g., because of the triviality of the claim. Contemptuous damages are derisory e.g. 1k. Where contemptuous damages are awarded, the plaintiff may be deprived of his costs. (Winfield and Jolowicz, op. cit. p. 592).

General and Special Damages

Both of these are species of compensatory damages. “General damage” is such damage as the  law will presume to have resulted from the defendant’s tortuous conduct (e.g. the damage to reputation which is presumed in all cases of libel), and which does not have to be expressly pleaded by the plaintiff. “Special damages” is damage which the law does not presume, and which must therefore be specifically pleaded and proved (e.g. the loss of employment caused by a libel). In Bowen L.J’s words: (Ratcliffe v. Evans (1892) 2 Q.B. 524 at p. 528).

Special damage is the particular damage (beyond the general damage) which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.

In Dumez (Nig.) Ltd. V. Ogboli, the Supreme Court emphasised that:

it is axiomatic that special damages must be strictly proved and (unlike general damages, where, if the plaintiff establishes in principle his legal entitlement to them, a trial judge must make his own assessment of the quantum of such general damages)… so far as special damages are concerned, a trial judge cannot make his own individual assessment but must act strictly on the evidence before him which he accepts as establishing the amount to be awarded. 12a (1973) 3 U.I.L.R. 306, at p. 311, (1973) 3 S.C. 196, at pp. 204, 205.

Somewhat confusingly, in actions for personal injuries the terms “general” and “special” damages are used in a secondary sense. There, general damages are awarded for those items of damage which cannot be precisely calculated in money terms, such as pain and suffering, loss of amenities, loss of future earnings and loss of expectation of life; whilst special damages refer to those items of loss which are capable of precise calculation, such as damage to clothing, medical expenses already incurred and loss of earnings up to the date of judgement. (see p. 256, post).

CONCLUSION

As we have seen, the primary remedy for a tort is damages, the purpose of which is normally to compensate the plaintiff for the harm he suffered as a result of the defendant’s tortuous conduct. This unit is concerned with the proximate cause of a tortuous act which can lead to damages.

SUMMARY

In this unit, you learnt:

• about the causally relevant factors i.e. cause in fact of a tortuous act;
• the “But for” test;
• multiple cause;
• proximate cause

TUTOR MARKED ASSIGNMENT

1. What are the three elements of negligence and how are these established?
2. Explain the “But for test” with decided cases
3. Explain the term cause-in-fact as it relates to tortuous act

REFERENCES AND FURTHER READINGS

1. Bodunde Bankole Tort: Law of Wrongful Conduct: Lipservice Punishmnt (1998),
2. Fidelis Nwadalo: the Criminal Procedure of the Southern States of Nigeria, Mij Publisher, Ltd, Lagos (1996).
3. John G. Fleming: The Law of Torts (1977), The Law Books Co. Ltd publisher, London. Sweet &
4. Street: The Law of Torts Swet & Maxwell (1977), London
5. KODILINYE & Oluwole Aluko: Nigeria Law of Torts. Spectrum Law Publishers, 1999.

: The Criminal Procedure of the Northern States of Nigeria