Documentation:Torts/Damage
Damage
Damage is one of five elements of the tort of negligence. When pursuing an action in negligence, a plaintiff must establish not only that a duty of care was owed and that the defendant breached said duty, but that "that [they] sustained damage" caused by the defendant's breach of duty.[1]
Damage has been defined as:
... any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has no control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by ‘actual’ damage. ...[2]
The element of damage is distinct from the remedy of damages.[3] The Nova Scotia Court of Appeal explained this, quoting A.I. Ogus:
The terms "damage" and "damages" have suffered from loose usage. Some writers and judges have used them as if they were synonymous. But "damages" should connote the sum of money payable by way of compensation ... , while the use of "damage" is best confined to instances where it refers to the injury inflicted by the tort or breach of contract ...[4]
Damage as an essential element
| Atlantic Lottery Corp Inc v. Babstock[5] at the SCC |
|---|
| Atlantic Lottery Corp. Inc. v. Babstock is a Canadian case in which "the plaintiffs [sought] a gain-based award, quantified by the profit ALC earned by licensing [video lottery terminals]."
Watch the SCC hearing here. |
Per Re T&N Ltd, "[d]amage is a necessary element of a cause of action in the tort of negligence. Unless and until the claimant suffers a loss which is recognised in law as compensatable by an award of damages, the claimant has no claim in negligence."[6]
This requirement reflects the idea that "negligence 'in the air'—the mere creation of risk—is not wrongful conduct."[7] There must be recognized damage for a plaintiff to succeed in a claim of negligence.[6]
Categories of damage
Two types of damage that courts readily recognize as compensable are:
Conversely, there are other types of damage that courts have grappled with in determining the scope for which they should be compensable, including:
- Mental personal injury / nervous shock.[10]
- Reputational harm.[11]
- Pure economic loss.[11]
- Anticipated future harm.[5]
Discussion questions
- What tort theories does the requirement of damage reflect?
- Why do you think the common law recognizes some types of damage more readily than others?
- Does it make sense for courts to distinguish between physical and mental injury when conceptualising personal injury as damage?
Quiz
- ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 3.
- ↑ Smith v. Union of Icelandic Fish Producers Ltd, 2005 NSCA 145 at para 120, citing Nykredit Mortgage Bank Plc v. Edward Erdman Group Ltd, [1997] UKHL 53 (BAILII).
- ↑ Smith v. Union of Icelandic Fish Producers Ltd, 2005 NSCA 145 at para 119.
- ↑ Smith v. Union of Icelandic Fish Producers Ltd, 2005 NSCA 145 at para 119, citing AI Ogus, The Law of Damages (London, Butterworths, 1973) at 2.
- ↑ 5.0 5.1 Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (§15.1.1).
- ↑ 6.0 6.1 Re T&N Ltd, [2005] EWHC 2870 (Ch) (§15.1) at para 25.
- ↑ Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (§15.1.1) at para 33.
- ↑ See e.g. Ryan v. Victoria (City), 1999 CanLII 706 (SCC) (§14.1.2).
- ↑ See e.g. Overseas Tankship (UK) Ltd v. The Miller Steamship Co, [1966] UKPC 10 (BAILII) (§14.2.2.2) [The Wagon Mound No 2].
- ↑ See e.g. Mustapha v. Culligan, 2008 SCC 27 (§17.1.3).
- ↑ 11.0 11.1 See e.g.1688782 Ontario Inc v. Maple Leaf Foods Inc, 2020 SCC 35 (§19.3.2).