William Feilden Craies

“ The law is the same in Scotland and in France (Civil Code, art. 1153) . In some contracts the parties themselves fix the sum to be paid as damages if the contract is not fulfilled. These damages are described as liquidated, in Scots law stipulated or estimated. It would be supposed that the sum thus fixed would be the proper damages to be awarded. And under the French Civil Code (arts. 1152, 1153, 1780) the stipulation of the parties as to the damages to be paid for breach of a stipulation other than for paying a sum of money is binding on the courts. ”

“ And while a bad motive (malice) is seldom enough to give a cause of action, proof of its existence is a potent inducement to a jury to swell the assessment of damages, as evidence of bad character may induce them to reduce the damages to a derisory amount. ”

“ It is difficult by any arithmetical calculation to value pain and suffering; nor is it easy to value the effect of a permanent injury; and in the Workmen’s Compensation Act and Employers’ Liability Act, an attempt has been made in the case of workmen to assess by reference to the earnings of the injured person. ”

“ Where minerals are wrongfully severed and carried away, the damage is assessed by calculating the value of the mineral as a chattel and deducting the reasonable expense of getting it. But where the interference with property, whether real or personal, is attended by circumstances of aggravation such as crime or fraud or wanton insult, it is well established that additional damages may be awarded which in effect are penal or vindictive. ”

“ In the case of such wrongs as assault, arrest or prosecution, the motives of the defendant naturally affect the amount of general damage awarded, even when not essential elements in the case, and the damages are “at large.” Any other rule would enable a man to distribute blows as he can utter curses at a statutory tariff of so much a curse, according to his rank. ”

“ In actions for injuries to the person or to reputation, it is difficult to make the damages a matter for exact calculation, and it has been found impossible or inexpedient by the courts to prevent juries from awarding amounts which operate as a punishment of the delinquent rather than as a true assessment of the reparation due to the sufferer. ”

“ Thus, when a man agreed to pay for a horse a barley-corn per nail, doubling it every nail, and the amount calculated as 32 nails was 500 quarters of barley, the judge directed the jury to disregard the contract, and give as damages the value of the horse. ”

“ But trouble and expense incurred by the seller of finding a new purchaser or other goods may be taken account of in assessing the damages.
Where the goods delivered are not as contracted the buyer may as a rule sue the seller for a breach of warranty, or set it up as reduction of price. ”

“ In the case of injuries to the person caused by negligence, the tribunal considers, as part of the general damage, the actual pain and suffering, including nervous shock (but not wounded feelings) and the permanent or temporary character of the injury, and as special damage the loss of time and employment during recovery and the cost of cure. ”