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21.2 What are damages for?, Many of these link to other functions of tort…
21.2
What are damages for?
'Non-compensatory damages'
Exemplary damages
higher than usual sum must be paid
partly as a ‘punishment’ or to set an example to other potential defendants when there has been ‘outrageous’ conduct
Aggravated damages
higher than usual sum is awarded to a particular claimant
in recognition that they have suffered to a greater degree than would be expected (as a result of the defendant’s actions)
Contemptuous damages
claimant receives a lesser sum than usual
in recognition that a legal wrong has been committed, but showing the court’s displeasure that such a claim was brought
Nominal damages
a legal wrong has been committed
but no actual (recognised) loss has been suffered by the claimant
Making a defendant pay (compensatory) damages = about more than compensating claimant for wrong committed
Fear of having to pay damages = influence behaviour & have a deterrent effect
EXAMPLE:
Once one employer pays compensation for having poor safety conditions in the workplace, it can be hoped that other, similar employers will also alter their safety conditions
Idea is that
people learn from their & others' mistakes
Compensatory damages can operate as a type of retribution
Whatever size of the award, successful claimants are more likely to feel vindicated (law was on their side) > those who receive nothing
When
someone
is to blame for harm
you
suffered
= natural to want to 'make them pay'
Compensation payments can be seen as acknowledgment of the wrong (or an apology)
COUNTERPOINT
Tort claims can be brought for many reasons, but
arguably
for monetary compensation (ultimate aim)
Reasons stem from Industrial Revolution - increased no. of serious accidents suffered (in the workplace)
Introduction of motorised transport had an effect on no. & type of injuries
Led to gradual emergence of claims for damages for personal injury as the ‘dominant’ tort action
ISSUE:
leads to a perception of tort as being
purely for accident compensation
= not its sole function or reason it was created
Tort was:
a system for righting wrongs (corrective justice)
highlighting individual responsibility - (wrongdoers were held responsible for their harmful actions)
If aim is to achieve compensation for those who deserve it
= tort accident compensation system has many flaws (largely stemming it being based on fault, blame and culpability)
Many of these link to other functions of tort - deterrence, retribution, etc.