Arbitral Award

Damage as a Constituent of Law of Torts

Share This:

In the Law of Torts, the word “tort” can be defined by a layman as wrong or an injury. Such an injury, which can be redressed with damages to the person who has been wronged or injured, among other characteristics. Torts are a civil wrong so any matter filed in the courts for a tort becomes a civil case. Since it’s a civil case, the person usually himself files the case in the Court so that he can claim compensation or remedy the injuries and wrongs he has suffered due to another person’s unlawful acts. As we all might know, certain torts that we encounter in daily lives commonly are assault, trespass, libel, and nuisance, among other torts. For a more clear explanation, a tort can be described as violating the rights of a person or being in breach of a duty that is owed to another person. The Law of torts has a very important element of damages. In tort law, the remedy that is used to compensate a person for their grievances due to violation of their rights or breach of one’s own duty is called damages. Damages are monetary compensation in tort law. To be strictly legal, damages are awarded to the aggrieved party in the form of a sum of money determined by the law in the case of violation of rights or breach of duty. For any loss or injury suffered by the victim, damages are a monetary compensation which he can claim.1

One might tend to get confused between damage and damages. Even though they might sound similar, they cannot be used interchangeably. Damage and damages are two different concepts in the law of torts. Damage can be described as when a person suffers a loss due to another person’s wrongful acts. On the other hand, damages, as we have discussed above, is the sum of money compensated to a person whose rights have been injured.  

What are Damages?

Damages are the most common remedy which is available to the person who has been injured or wronged. The person who has caused the injury is supposed to pay damages which is an amount of money to the person whom he has injured.

In the law of torts, legal injury is the most important element. In order to claim any damages, the victim must suffer a legal injury, In the absence of a legal injury, there is no actual loss faced by the person, and hence he cannot claim for remedy. This concept is laid down in two very important maxims of the law of torts which become the foundation of the law of torts. 

  • Injuria sine damno: this maxim literally means that there is an injury without any actual damage. In such a case, there is a violation of the legal rights of a person but he hasn’t suffered any damage. Yet the person has a right to approach the court to enforce his rights that have been violated.
  • Damnum sine injuria: this maxim literally means that there is actual damage without any injury. In such a case, there is no violation of the legal rights of a person but he has only suffered damage. Therefore the person cannot approach the court to seek remedy since there is no right that has been injured and that needs to be enforced.

Hence, Damages in the law of torts can only be provided in the cases of injuria sine damno but not in the cases of damnum sine injuria which means there needs to be a violation of the legal right to seek damages as a remedy.

Liquidated and Unliquidated damages:

Whenever a person does an unlawful act and violates the rights of another person, the person who is violated has suffered a legal injury and can go to court to get a remedy which is usually a remedy of providing damages to compensate for the loss. The damages that are paid to the person seeking them can differ in situations, they can be broadly classified as Liquidated and unliquidated damages.

  • Liquidated damages: In cases where the amount that needs to be paid to the injured person as compensation is predetermined, the sum of money is called Liquidated damages. Liquidated damages are very common and usually paid whenever there are cases of contracts. In a typical contract, both parties know each other while entering it, therefore when they cause damage to the other person due to breach of their duty and breach of contract, the Court has the duty to enforce this sum of predetermined damages in the contract.
  • To have a clearer understanding, let’s use an example. For instance, Mr. A enters into an agreement with Mrs. B for selling his goods to her. While drafting the contract, they add in the terms of the contract that Mr. A will have to pay a sum of Rs. 2000 to Mrs. B as compensation if the goods are defective. It so happens that Mrs. B goes to Court because the goods turn out to be defective. The Court orders Mr. A to pay Mrs. B Rs. 2000. This kind of compensation, which has already been specified in the contract between both parties, is called liquidated damages. 
  • Unliquidated damages: In cases where the amount of damages that are to be paid to the injured person by the person who has caused this legal injury is not predetermined, the monetary compensation given to the injured person is Unliquidated Damages. Unliquidated damages simply mean that the amount to be paid as compensation is not decided before the person is injured as opposed to the case above. The sum of damages is not already decided by both parties since unliquidated damages usually are paid in cases where the parties of a case do not know each other beforehand. Only after the tort is committed are they involved with each other, and the damages to be paid to the plaintiff are decided by the Court since they are not already stipulated. 
  • For a clearer understanding, let’s use an example. For instance, Miss X commits the tort of trespass in Miss Y’s property. Miss Y decides to go to Court to sue Miss X for her trespass. In this scenario, the amount of compensation to be awarded as damages to Miss Y by Miss X will be determined by the Court and therefore the damages will be unliquidated damages.

What is the Principle of Optimal Damages?

Damages are compensation to the injured person for a violation of his legal rights and therefore deciding the sum of the damages can be a very tricky task and needs to be done with utter care. Therefore the courts need to make all the efforts that are possible to ensure that the damages they are ordering to be paid are optimal. The quantum of damages should not only be reasonable but also sufficient. 

In the law of torts, the Court while awarding damages to the injured person makes all the possible effort to ensure that the amount or quantum of damages is optimal. It means that the damages awarded by the Courts should be reasonable and adequate. The Courts need to be careful that they neither over-compensate the claimant nor do they under-compensate him. To ease this decision, the Principal of Optimal Damages comes handy in deciding the quantum for optimal damages. In order to do that, the Court considers the following factors: 

  • The nature of the injury suffered by the Plaintiff
  • The kind of relationship both the parties share and the type of risk of the injury
  • The rule of liability
  • Whether it is an individual liability or vicarious liability 
  • Any other sort of existing imperfections2

Only after keeping the aforementioned factors in mind and their relevance to the matter in hand, does the Court determine damages which the plaintiff can seek from the person who is found guilty of committing the tort.

Types of Damages in Tort

Apart from liquified damages and unliquidated damages, which are the two very broad classifications of damages, in torts, there are other kinds of damages which are awarded by Courts to the plaintiff. These can be broken down into several types.

1. Nominal Damages

When there is no actual loss suffered by the plaintiff even though the plaintiff has suffered a legal injury because of the unlawful acts of the defendant, the Court can order the payment of Nominal Damages. As we learned above that Injuria sine damno means injury without actual damage, so in cases where Injuria sine damno is recognized by the Court, it orders Nominal damages to be paid. In such cases, there is a violation of the plaintiff’s right but there is no actual loss to the plaintiff because the damage of the plaintiff is low or nominal.

This was seen in the landmark case of the law of torts for injuria sine damno, which was the case of Ashby v. White3. In this case, the defendant had prevented the plaintiff from voting. The candidate for whom the plaintiff was going to cast his vote won despite the plaintiff not being able to vote for him. Still, the plaintiff went to court and sued the defendant because he was prevented from exercising his legal right to vote and so the court only ordered nominal damages as compensation since there was no actual damage that the plaintiff had suffered.  

2. Contemptuous Damages

Contemptuous damages are awarded by the Court when the Court deems that there is a violation of a right of the plaintiff, but the violation is of a trivial nature, and that by filing this suit for such a trivial nature the plaintiff has wasted the Court’s time. In this situation, the Court orders a meager sum of damages as compensation to the plaintiff. It would be wrong to think that nominal damages and contemptuous damages are the same. In nominal damages, there is ‘no actual loss’ suffered by the plaintiff but in contemptuous damages, there is ‘trivial loss’ suffered by the plaintiff so as a result, he only deserves a little sum of compensation. 

For instance, If Ramesh’s cow enters Suresh’s house and leaves cow dung in his house on which Suresh accidentally steps on and he is disgusted because of it and as a result of his disgust, Suresh decides to sue Ramesh, then the Court will rule in Suresh’s favour. However, since the case is of a trivial nature, the damages awarded by the Court will be of a meager amount.

3. Compensatory Damages

In cases where the plaintiff needs to reach his original position before the commission of tort against him, then the Court will award Compensatory damages. Compensatory damages are awarded to restore the plaintiff’s original position rather than to punish the defendant. Compensatory damages are typically awarded in those cases where the amount of loss suffered by the plaintiff can be easily calculated, and therefore the Court orders the defendant to restore that amount to the plaintiff by paying damages as compensation for his monetary losses.

As an example, if Zoe takes Tia’s bike and damages her bike due to rash driving then the Court can order Zoe to pay Tia compensatory damages which will amount to the repair for Tia’s bike to get restored to its original condition. 

4. Aggravated Damages

Any extra harm other than the monetary loss of the plaintiff falls under the ambit of Aggravated Damages. Factors such as the pain, loss of self-esteem, and agony, etc suffered by the plaintiff cannot be calculated in monetary terms and hence this extra harm needs to be remedied as aggravated damages. This additional damage other than the monetary damage suffered by the plaintiff cannot be included in his pecuniary loss and therefore need aggravated damages to be compensated.

To understand better, let’s assume that A makes false accusations for B. As a result of these accusations, the standing of B in society and his image is greatly damaged and he is ridiculed by the people. Due to all this, B loses all his self-confidence and even his self-esteem is affected. In these circumstances, the Court will order A to pay B aggravated damages in order to compensate B for his humiliation in society and his loss of confidence which was all due to A’s actions.

5. Punitive Damages

Punitive Damages, as the name itself suggests, are meant for punishing the defendant. This punishment has the objective of making an example of the defendant and his actions, this is done to ensure that others do not commit the same acts as him. Punitive damages are therefore also known as ‘exemplary’ damages because they are awarded to set an example, this acts as a deterrent mechanism for such acts. The Court awards Punitive damages to the plaintiff when it deems that the defendant has committed such an act which is utterly gross in nature.

For instance, if a company advertises that its cream will help people in quickly becoming fair because it uses natural therapeutic ingredients, and due to these claims a person purchases the cream. After using the cream, due to certain chemicals in it, the person becomes severely ill and moves to Court for suing the company. In this case, the Court will not only award compensatory damages to the plaintiff to restore him to his original position, but the Court will also award the plaintiff with punitive damages because of the false claims of the company in order to punish the company and ensuring that the company does not repeat this gross act in the future. 4


1.  Black’s Law Dictionary


3.  (1703) 92 ER 126



Virali Joisher

Student, Kirit P Mehta School of Law, NMIMS Mumbai

Virali is an enthusiastic law student who has big ambitions, and a bigger spirit to always keep learning. She is exploring her interests in the field of law and feels strongly for women’s issues. For any Clarifications, feedback, and suggestion, you can reach her at

Leave a Reply

Your email address will not be published. Required fields are marked *