What are the various kinds of 'damages' that a plantiff can avail as a remedy under the law of Torts? Under what circumstances can “prospective damages" be awarded?

Types of Damages in Tort Law

Damages in tort law can be broadly categorized into several types:

• Compensatory Damages: These are the most common type of damages and aim to compensate the plaintiff for the actual losses suffered. They can be further divided into:
  • Pecuniary Damages: Quantifiable losses like medical expenses, loss of earnings (past and future), and property damage.
  • Non-Pecuniary Damages: Intangible losses like pain and suffering, mental distress, and loss of amenity. Calculating these is subjective.
• Punitive Damages (Exemplary Damages): Awarded not to compensate the plaintiff, but to punish the defendant for egregious conduct and deter others from similar actions. These are awarded only in cases of malice, fraud, or wanton disregard for the rights of others. The landmark case of Rookes v Barnard [1964] AC 626 established guidelines for awarding punitive damages.
• Nominal Damages: A small sum awarded when a legal right has been violated, but no actual damage has been proven. This acknowledges the wrong but signifies minimal harm.
• Contemptuous Damages: Awarded when the plaintiff’s claim is frivolous or vexatious, and the defendant’s conduct is particularly reprehensible. The amount is very small, signifying the court’s disapproval.
• Liquidated Damages: These are damages agreed upon in a contract to be payable in the event of a breach. While originating in contract law, they can be relevant in torts when the tort involves a breach of contract.

Prospective Damages: Circumstances of Award

‘Prospective damages’ refer to damages awarded for future losses that the plaintiff is likely to incur as a result of the injury. These are awarded when the plaintiff can demonstrate, on the balance of probabilities, that future harm is a reasonably foreseeable consequence of the tort. The award of prospective damages is subject to certain conditions:

• Certainty of Future Loss: The plaintiff must provide sufficient evidence to convince the court that future loss is likely. Speculation is not enough.
• Quantifiability: While precise calculation is difficult, the court must be able to reasonably estimate the extent of the future loss.
• Discounting: Future earnings are typically discounted to their present value to account for inflation and the time value of money.
• Periodicity: The period for which prospective damages are awarded must be reasonable, considering the plaintiff’s life expectancy and the nature of the injury.

Examples of circumstances where prospective damages are awarded:

• Future Medical Expenses: If a plaintiff requires ongoing medical treatment, the court can award damages to cover the anticipated costs.
• Future Loss of Earnings: If an injury prevents the plaintiff from working, damages can be awarded for the income they would have earned in the future. The case of Simon v Leigh Day & Co [2007] EWCA Civ 115 dealt with calculating future loss of earnings.
• Loss of Future Services: In cases of severe injury, damages can be awarded to compensate for the loss of services the plaintiff could have provided to their family (e.g., childcare, household chores).

The award of prospective damages is discretionary and depends on the specific facts of each case. Courts exercise caution to ensure fairness to both parties.