As an Affected Party: What Damages Do I Deserve — and Why Should the Court Award Them?

The doctrine of damages, often treated as a mechanical endpoint to litigation, deserves far more intellectual interrogation. The law’s power to award monetary compensation is not merely a procedural consequence; it is a profound exercise of justice, morality, and societal discipline. The question is not simply what damages are available, but why they should be awarded — and whether the existing categories of damages are adequate to reflect the complex realities of human and commercial relationships.

To say that damages are meant to “restore” the injured party is insufficient. The law cannot genuinely restore what was lost; it can only approximate. Thus, the awarding of damages becomes a statement of values — a judicial recognition of rights and wrongs. The rule in Hadley v. Baxendale (1854) 9 Exch 341, limiting damages to foreseeable losses, while foundational, arguably restrains justice. Why should defendants escape liability for damages they ought to have foreseen if they had acted with reasonable diligence? The doctrine invites complacency rather than diligence.

Similarly, the insistence that special damages must be specifically pleaded and proven — as required by cases like Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd [1949] 2 KB 528 — while procedurally sound, often allows technicality to triumph over substantive justice. Should not the courts, in the interest of fairness, allow a more flexible approach where the evidentiary standard threatens to undermine the core aim of making the injured party whole?

The idea of nominal damages, derived from cases like Ashby v. White (1703), has become a safe retreat for courts unwilling to grapple with intangible harms. But why should the violation of a right be met with tokenism? The absence of quantifiable loss does not negate real harm. The law’s reluctance to grapple with the complexities of emotional and reputational damage — except in torts like defamation or nuisance — reveals its discomfort with non-economic injury.

In Doyle v. Olby (Ironmongers) Ltd [1969] 2 QB 158, Lord Denning forcefully argued that damages for fraudulent misrepresentation must encompass all direct losses. Yet, courts often err on the side of caution, reducing awards in the name of proportionality. But why should deceit — an intentional and morally reprehensible act — not be met with more expansive financial penalties? The tendency to moderate damages here sends a dangerous message: dishonesty carries a price tag, but often a small one.

Aggravated damages, awarded in cases like Thompson v. Commissioner of Police of the Metropolis [1998] QB 498, remain underused. The law’s reluctance to recognize that certain injuries — humiliation, mental distress, indignity — are just as real and deserving of compensation as financial loss perpetuates injustice, especially in torts against the person.

Exemplary damages, recognized in Rookes v. Barnard [1964] AC 1129 and later expanded in Kuddus v. Chief Constable of Leicestershire [2001] UKHL 29, are often criticized for introducing punishment into civil law. But is this criticism warranted? If the civil court does not punish egregious conduct, who will? To deprive the judiciary of this tool is to render it impotent in the face of intentional wrongdoing. Society’s sense of justice demands that certain acts be denounced publicly and forcefully — and exemplary damages are the courtroom’s loudest denunciation.

Consequential damages are meant to cover losses beyond the immediate breach. Yet courts often hesitate to embrace the full scope of such damages, for fear of speculative claims. But should that fear override the reality that breaches and torts set off chains of events far more complex than the narrow confines of proximate cause suggest?

The award of damages should not be treated as a sterile calculation but as a moral and societal statement. Courts are not merely dispute-resolvers; they are arbiters of conduct and guardians of collective values. To award inadequate damages is to diminish the law’s moral authority; to award them boldly and justly is to reinforce the social contract. As affected parties, claimants must not only seek damages but challenge the court to rise to its moral duty — to punish where punishment is required, to compensate where compensation falls short, and to protect rights with both wisdom and courage.

References:

The Law of Contract in Ghana, Christine Dowuona-Hammond (2011), pp. 304–312.

Recasbed Ghana Limited v. Forestry Commission (J4/38/2023).

Assessment of Damages, Justice Yaw Appau, JA.

Street on Torts (5th Edition, London Butterworth).

Hadley v. Baxendale (1854) 9 Exch 341.

Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd [1949] 2 KB 528.

Doyle v. Olby (Ironmongers) Ltd [1969] 2 QB 158.

Rookes v. Barnard [1964] AC 1129.

Kuddus v. Chief Constable of Leicestershire [2001] UKHL 29.

Thompson v. Commissioner of Police of the Metropolis [1998] QB 498.