How are damages calculated in civil litigation?
In civil litigation, damages are the money awarded to compensate someone who has suffered harm or loss. There are two main types of damages: general damages and special damages. In some cases, other categories such as punitive, statutory, nominal, or liquidated damages may also apply.
General Damages
General damages compensate for losses that do not have a precise dollar value, such as:
- Pain and suffering.
- Physical or emotional distress.
- Loss of enjoyment of life.
- Shortened life expectancy.
- Loss of companionship of a loved one.
Because these losses are non-quantifiable, courts look to precedent – similar past cases – to decide on an appropriate amount. This helps ensure that people with similar injuries receive similar compensation.
Example: If someone is paralyzed in a car accident, general damages are meant to compensate for the pain, suffering, and emotional distress.
Special Damages
Special damages cover specific financial losses that can be proven with evidence like receipts, bills, or records. These may include:
- Medical expenses and treatment costs.
- Lost wages or income.
- Other out-of-pocket expenses related to the claim.
Because these damages are tied to actual expenses, they are easier to calculate. For example, if someone was hit by a car, all of their expenses related to physiotherapy treatments, medications, and missed time at work are easily calculatable. All of these expenses are examples of special damages.
Other Types of Damages
- Punitive damages – These are rare and only awarded in extreme cases, at the court’s discretion, where there is deliberate or malicious misconduct – such as fraud or bad faith. Unlike other damages, which are meant to compensate the victim, punitive damages are intended to punish the wrongdoer and deter similar conduct.
Example: A court may award punitive damages where an individual knowingly misrepresents the facts to induce another person to enter into a contract. - Statutory damages – These are damages that are specifically set out in a statute (i.e., written law) and must be awarded in accordance with that law.
Example: In the Copyright Act, it allows for a copyright owner to recover an award of statutory damages in a sum of not less than $500 and not more than $20,000 if the infringements are for commercial purposes. If the infringements are for non-commercial purposes, then in a sum of not less than $100 and not more than $5,000. - Nominal damages – A nominal amount (such as $) awarded when a legal wrong has occurred, but no real loss was suffered.
Example: In British Columbia, a court awarded nominal damages of $100 to the defendant’s mother because her will was improperly read and copied, violating her privacy rights under the British Columbia Privacy Act. - Liquidated damages – A fixed amount agreed upon in advance, usually written into a contract, to be paid if there is a breach of contract.
Example: Parties can agree in a contract for purchase and sale of property that if the buyer fails to close on the deal without a valid reason, the seller can keep the $50,000 deposit as liquidated damages.
This FAQ was prepared by Vancouver Civil and Estate Litigation Lawyer, Jiya Dassan, and Calgary Articling Student Neema Khalili.
