INTRODUCTION
Assessment of Damages is a very wide area of the law. It is very ‘technical’ and covers an important area of civil litigation where there is an alleged civil wrong or an infraction of the law. It permeates almost all civil claims arising from tort and contract.
When a claim for damages is included in an action, the plaintiff or claimant is required under the law to provide evidence in support of the claim and to give facts upon which the damages could be assessed. Simply put, before assessment of damages could be made,
The plaintiff or claimant must first furnish evidence to warrant the award of damages. He must also provide facts that would form the basis of assessment of the damages he would be entitled to. His failure to do so would be fatal to his claim for damages.
That is why in all actions where damages is one of the reliefs claimed, the plaintiff or claimant is always called upon to give evidence in support of the claim for damages after interlocutory judgment is entered in his favour upon the failure of the defendant to either enter appearance or to defend the action. But before straying into the technical area of ‘assessment of damages’, which is our subject for this period, it is important that we know and appreciate what the word ‘Damages’ in law means.
When the word is used in its singular context; i.e. ‘damage’, what it simply connotes is either: (i) Harm or injury, that is; physical injury that makes something less useful, less valuable or unable to function properly; e.g. (a) damage to a vehicle or any property
(ii) An adverse or harmful effect on somebody or something; e.g. (a) did damage his reputation in the community in which he lives, (b) suffered psychological damage as a result of harassment, etc. In another sense, damage is used to mean the cost or price of something.
However, ‘Damages’, as used in law, is nothing but, a sum of money claimed as compensation or awarded by a Court as compensation to the plaintiff/claimant for harm, loss or injury suffered by the plaintiff/claimant as a result of the tortuous act or breach of contract committed by the defendant or his agent.
Elizabeth A. Martin’s edition of the Oxford Dictionary of Law, 5 Edition, published by Oxford University Press, defines ‘damages’ as “a sum of money awarded by a court as compensation for a tort or breach of contract”.
In ‘McGregor on Damages’, the word ‘Damages’ is defined as; “the pecuniary compensation obtainable by success in an action, for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum, which is awarded unconditionally”. {Chapter 1, page 3}. ‘Damages’ is one of the several remedies that are open to a plaintiff who suffers injury or harm as a result of the tortuous act or breach of contract of another.
MAIN BODY
Damages are usually ‘lump sum’ awards. The general principle underlying the award of DAMAGES either in tort or in contract is that the plaintiff or claimant is entitled to full compensation for his losses; i.e. the principle of ”restitutio in integrum”.
However, in determining how much to award, the Court considers two matters;
(i) The measure of damages, (i.e. quantum or the amount of money or lump sum that must be awarded)
(ii) Remoteness of damages; (i.e. the proximate cause of the breach).
In ‘tort’, the purpose of damages is to put the plaintiff in the position he would have been in if the tort had not been committed. [restitutio in integrum]. Damages are not awarded to over-enrich a plaintiff far beyond his actual losses. The reverse is also the case. Plaintiff should not get far less than his actual loss.
In the case of Borketey v. Achinivu & others (1966) GLR, 92, where a taxicab collided with a bus leading to a complete damage of the taxicab beyond repairs, the Supreme Court, in an appeal held that, “the appellant was entitled not only to the market value of the taxicab at the date of the accident but also to the profits he would have made had the car remained on the road”. {Total or actual loss}
So in both cases; either in tort or in contract, the principle is; ‘restitutio in integrum’. It is pertinent to note, however, that recovery of damages is limited by the rules of “Remoteness of damages”, as indicated above. By ‘remoteness’ is meant that the damages to be awarded must not be too remote from, but must be proximate to the tortuous act or the breach.
Bradford v. Robinson Rentals ltd[1] In the Bradford case cited above it was held that it is not necessary that the precise nature of the injury be foreseeable, provided that ‘the accident which occurred is a type which should have been foreseeable by a reasonable careful person, the defendant would be liable. th As stated in Salmon on Torts (14 edition at page 719), “It is sufficient if the type, kind, degree or order of harm could have been foreseen in a general way. The question is, was the accident a variant of the perils originally brought about by the defendants’ negligence?”
TYPES OF DAMAGES: - Damages are of two main types, namely; General Damages and Special Damages. Apart from these two categorization, damages may also be classified as Liquidated and Unliquidated. This second classification pertains or is limited to only contracts or agreements.
According to Lord Macnaghten, ‘General damages’ are such as the law will presume to be the direct natural or probable consequence of the action complained of. ‘Special damages’ on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary cause. They are exceptional in character and therefore they must be claimed specially and proved strictly.
Chahin & Sons v. Epope Printing Press[2] Special Damages are liquidated, verifiable and provable sums; e.g. loss of income, loss of rent, loss of wages, replacement costs, loss of marriage, loss of material hospitality, loss of employment, loss of a business dealing (even if it might have turned out unprofitable), loss of particular customers, a general falling of profits and any other material loss. The recovery of such damages is however, subject to the principle of remoteness as already discussed above.
Damages for Libel/Slander
In both libel and slander, damages are awarded to compensate the plaintiff for the injury to his reputation and the hurt to his feelings. Such damages are compensatory and therefore ‘at large’. Such damages are termed as a solatium rather than a monetary recompense for harm measurable in monetary terms. However, the general compensatory damages may be increased to take into accounts the defendant’s motives in uttering the words complained of or his conduct during the action. These additional or increased damages are what we call ‘aggravated’ or ‘increased’ damages as discussed earlier. They are meant to compensate the plaintiff for the additional injury caused as already explained above.
For factors to be considered in assessing damages recoverable in libel, see the case of Anthony v. University College of Cape Coast [1973] 1 GLR 299, per Edward Wiredu, J. (as he then was). For principles of assessment of damages in a customary law action for slander
Before going to the factors the following are the elements in which the court must take into consideration before awarding the damages which are Causation and Remoteness of the damages.
Causation; The claimant must prove that the damage complained of is the result of the defendant’s breach of duty. This is a question of fact. There must be an unbroken chain of causation. An event which breaks the chain of causation is known as a novus actus interveniens. Proof is on a balance of probabilities as stated in Hotson v East Berkshire[3] also in Stovold v Barlows[4]
Remoteness of damage; It is not sufficient merely for the claimant to establish a causal connection between the act of the defendant and the damage which the claimant suffers. It is also necessary to establish that the damage was not too remote. This is a matter of law, and legal rules have been formulated to determine the question of remoteness of damage which have been established in answer to the question: ‘For how much of the damage is the defendant liable?’
Damages
One of the remedies available in tort of defamation is damages, damages simply means compensation in monetary value. For the purpose of guiding the courts in assessing general damages some factors has been developed. These factors were enumerated in Professor Donton Mkandawire v. Alfred Mtonga and Nation Publications Limited[5],
FACTS OF THE CASE
The plaintiff, the Chief Executive for Lilongwe City assembly, commenced action against the defendants who are the editor and printers and publishers of the Nation Newspaper claiming that on the front page of the issue of the Nation Newspaper of 29th April 2005 the defendants maliciously printed and published or caused to be published the following words defamatory of the plaintiff:
“Lilongwe City Assembly Chief Executive Donton Mkandawire may face another contempt of Court charge following allegations that he threatened High Court Judge Richard Chinangwa after he ordered the Assembly to reinstate seven employees who were being accused of inciting a strike in July last year “
“The records indicate that the Judge got a threat from Lilongwe City Assembly through a phone call ………”
The plaintiff further claims that in their natural and ordinary meaning the said words meant and were understood to mean,
1. That the plaintiff is a violent person who does not respect the rule of law.
2. That the plaintiff is not fit to be a Chief Executive of a big and reputable institution like Lilongwe City Assembly.
3. That the plaintiff does not respect the independence of the Judiciary.
In consequence his reputation has been seriously damaged and has suffered considerable distress and embarrassment and therefore he claims damages for libel including exemplary damages and costs of the action.
The defendants did not attend court on the date appointed for the assessment of the damages despite having been duly served with the notice. No reason for non-attendance having been given, the court proceeded to hear the plaintiff in their absence.
In his evidence the plaintiff confirmed the facts pleaded in his statement of claim. He tendered in evidence the newspaper article in question and it was marked EX P1. He told the court that the heading of the article itself, which read “Lilongwe City boss threatens Judge” in big block letters, was misleading. No where did the judge indicate he got a threatening call from the plaintiff. The plaintiff further said that he got shocked with the article. He got several calls from ministers and others asking him why on earth he could do such a thing. He through his lawyers demanded an apology to appear in five successive editions of the paper but that was not done by the defendants. He stressed that the article has caused him a lot of embarrassment, unhappiness and disrepute.
All issues of liability having been settled by the default judgment, this court has only to assess and award the claimed damages.
Damages for defamation are mainly awarded for injury to reputation and to feelings. Where there is no requirement for proof of special damages as in cases of slanders actionable per se and libel as in this case, the damages are said to be “at large.” In such cases the amount of the assessment is peculiarly in the province of the tribunal. The damages can not be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case viewed in the light of the law applicable to them.
In Justice Mwaungulu v. Malawi News[6] the court listed several factors that need to be considered. They include,
(i) the context of the defamatory material,
(ii) the nature and extent of the defamatory publication including the aspect of reproduction,
(iii) the plaintiff's standing, his reputation and status,
(iv) nature of defamation, either libel or slander,
(v) conduct of the defendants from the time of the publication
(vi) recklessness of publication.
I take all those into consideration in this case and I award the plaintiff K400 000 exemplary damages. I also award him costs of the action.
Other factors were outlined by Kisanga.J. in the case of Said Ali Maswanya. v. African Buyer and Trader Publication Ltd and others[7],where it was said that in assessing damages for libel the court will take into account factors such as the status of the plaintiff, the extent of the circulation of the publication and the conduct of the defendant. In addition to the above the other factor to be taken into account is failure to prove justification and motive of publication.
- Social status
Social status is a position of an individual in that community. they are responsibility which one hold, which determine ones position in the community. Where the plaintiff is government official or minister, or priest, his position is conspicuous to every individual in the community. This being in case, a defamatory statement against such figures will attract more damages than where one is an ordinary person in the society.
- Publication
What are considered under this heading are the number of copies published, and the area of publication that is the countries and the continents in which the matter is circulated. So, if it is a wide coverage. Then, attracts substantial damages. In the case of Maswanya, in which the publication was circulated in 47 African countries it was considered to be a large circulation. Hence, the court awarded Tsh.200,000/= as damages.
- Conduct of the defendant(s)
The court has to consider whether apology was made, or demanded and refused or whether the defendant(s) responded to the summons of whether the defendant(s) was responding to communication by court or not. When the defendant is found to have been outrageous and /or un –cooperative and disdainful this aggravates the quantum of damages.
In the case of Ismail G. Lazaro v. Josephine Magomera The court assessed damages at the tune of 10,000/= justice Mroso expressed the conduct of the appellant to be disdainful in the following words:-
“Even after uttering the slanderous words of the respondent (plaintiff) no efforts at all according to the lower court’s records was made by the appellant (defendant) to tender any apology. The appellant (defendant) therefore did nothing to mitigate the damage he had done to the respondent (plaintiff). In this regard the judge awarded substantial damages.
- Failure to prove justification and motive of publication
In addition to the above three factors mention by Kisanga J , Mfalila J, went further, adding two more factors which court can consider. Those are failure to prove the defence of justification by the defendant and the motive for publishing the libel. Both of those factors do not enable courts to determine with precision the amount but give a court a rough figure acceptable in the circumstances.
Injunction
Injunctions, both interlocutory and permanent, are important. It is possible for an aggrieved party of defamation to seek an injunction in the circumstances in which, say a book or any writing which is soon to be published to be stopped from being so published.
In some cases, the claimant requires a remedy which will do more than simply prove financial compensation. There may also be circumstances in which there is a need to prevent repetition of the wrongful acts. The appropriate remedy in such cases is the equitable remedy of an injunction. For example, in libel cases, the claimant often seeks an injunction to prevent publication of defamatory material.
CONCLUSION
The assessment of damages is peculiarly the province of the trial court and the Court of Appeal will only interfere only if the finding is out of proportion to the facts. In Akuffo v. Issaka[8], it was held that the appellate court would only set aside an award if it is shown that the trial court/judge left some relevant matters out of account or that the trial court took some irrelevant matters into consideration in assessing damages.
The Supreme Court had earlier on in Bressah v. Asante & Another[9], held the same position in the following words: “An appellate court would only interfere with the quantum of damages on the ground that the trial judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very small as to make it an erroneous estimate”.
The relationship between causation and remoteness of damage In strict theory, causation (called ‘cause in fact’) and remoteness (called ‘cause in law’) must be dealt with as two separate requirements in each case. Causation is a matter of fact and requires the claimant to prove that the negligent act caused the damage complained of. The rules concerning remoteness of damage are a matter of law and broadly require the claimant to establish that the damage was of a kind which was reasonably foreseeable. It is concerned with setting a limit on the extent of the harm for which the defendant should be held liable.
However, it is not always a clear cut issue to establish where causation ends and remoteness begins, nor is it always a simple matter to separate some aspects of remoteness from issues which arise in relation to duty of care. Both causation and remoteness of damage frequently turn on issues of policy. Both are relevant throughout the law of tort and are dealt with in connection with negligence for the sake of completeness.
Credit: The work prepared by saidy kassim, LLB student at moshi cooperative university
REFERENCES
1. Atiyah, PS, The Damages Lottery, 1997, Oxford: Hart
2. Conaghan, J and Mansell, W, The Wrongs of Tort, 1993, London: Pluto
3. Harris, D, Remedies in Contract and Tort, 1988, London: Weidenfeld & Nicolson Holding, F and Kaye, P, Damages for Personal Injuries: Recent Developments and Future Trends, 1993, London: Chancery Law
4. Markesinis, B, Tort Damages in English and German Law: A Comparison, 1985, Siena: Facolta di Giurisprudenza
5. McLean, S (ed), Compensation for Damages: an International Perspective, 1993, Aldershot: Dartmouth
WEBSITES
1. Wikipedia.com
2. jurist.com
