A person who claims damages must prove the fact and amount of damages on the balance of probabilities. The nature of the damage will determine the degree of certainty and particularity with which it must be proved. Where it is possible to quantify damages reasonably precisely, appropriate evidence to do so is required. In other, cases where damage is substantial but difficult to quantify (such as in the case of personal injuries), evidence must be forthcoming, but difficulties in proving quantum will not prevent recovery.
Some types of damages are presumed from proof of the facts and circumstances. Civil wrong claims involving personal injury are especially difficult to assess. Ultimately, it comes down to an opinion based on articulated and unarticulated policy considerations, as to how much should be awarded. In the cases of pain, suffering, loss of amenity and similar types of loss, it is inherently difficult to quantify a pecuniary loss, so that any award might seem impressionistic and in some sense arbitrary.
Assessing Future Possibilities
Loss may be prospective and a matter of probability. In one sense, all future expenses are speculative and matters of probability. However, there are differences of degree. In many cases the matters will be substantially likely, with little possibility of a contrary outcome. Other possibilities may be more remote, sometimes substantially less than 50% and in some cases, much less.
The courts employ different techniques to assess the future loss of earnings and business profit. In terms of future loss of earnings and probabilities, the courts will discount possibilities into a present sum, with the assistance of actuaries and forensic accountant. These are not loss of chance claims in the sense mentioned. They are an assessment of damages in the conventional sense, which commonly involve the assessment of future probabilities.
When a question arises in proceedings as to whether a past event happened, the matter is not assessed in terms of probability. It must be decided one way or the other. Considerations of probability are only applicable to future events.
Where a person has a predisposition towards a particular disease, an accident involving a tort / civil wrong might increase the that possibility. Where there is no predisposition, the accident may cause a possiblitly of that disease occurring.
Hypothetical Future Events I
Damages may be sought on the basis of a lost opportunity or chance. The courts have been reluctant to award compensation for speculative possibilities. For example, the possibility that the claimant might lose the loss of chance of avoiding a particular condition or disability may be insufficiently probable, so as to be recoverable .
Where the defendant’s negligence is some act or omission, the question of causation is largely a historical fact. The issue of causation is more difficult when turns on the hypothetical question as to what the claimant would have done, if there had been no negligence.
Conjectural as the matter may be, the issue is subject to proof on the balance of probabilities. He must show on the balance of probabilities, that he would have acted in a particular way but for the negligence.
If the claimant’s loss depends on the hypothetical actions of a third-party, he must show that there is a substantial chance that the third party would act in the manner alleged.
The courts have been reluctant to adopt a probabilities approach in medical negligence claims. They have been more prepared to take this approach in professional negligence claims involving pure economic loss.
Hypothetical Future Events II
A particular instance of loss of possibility, is where a personal injury claim becomes statute barred, due to the negligence of a solicitor. In such cases, the courts have been willing to grant damages based on the probability of success of the case.
Where the chance relates to the prospect of success in a legal claim, courts will consider whether there was a real and substantial possibility of success, rather than a negligible or speculative possibility. If there is a real and substantial possibility, them the courts will evaluate the prospects.
It is necessary to assess what defences might be raised. Account will be taken of the possibility of a settlement. Discounts ill be applied to different types of damage. In principle, the loss should be measured as at the date when the matter should have gone to trial. It appears however the court will take account of events which have happened after that date.
Where a claimant claims that he would make a particular gain in a transaction, the actual later gain or lesser gain which he in fact makes, will be taken into account.
Where the chance is at the discretion or control of the defendant wrongdoer, damages for breach are assessed on the assumption he will act / perform in the way most beneficial to himself and least beneficial to the claimant.
The historical position was that where persons have separate interests which are violated by a single act, there are two distinct rights to take action. For example, where a person suffers personal injury and property damage, two interests are involved. The modern approach requires that claims which can be litigated in a single set of proceedings, ought to be so litigated. It is likely that a person who fails to do so will either be estopped, or at least penalised in costs for not so doing.
It may be a question of degree, as to whether there is one or several claims. Where there is an accident causing personal injury, then there is a single claim notwithstanding that it may have many elements. For example, there may be multiple types of loss suffered, pain and suffering, past and loss of future earnings and property damage in a single claim.
A single incident may give a person a claim which arises for him personally and another which arises from an injury to another. This may occur where a person suffers personal injury and another on whom his is dependent is injured or killed.. The same considerations apply. Although there are separate claims / causes actions, the courts will almost invariably require that al matter should be dealt with in a single claim.
Damages may not be granted for loss arising before the cause of action or claim arose. Where there is a continuing wrong, it may create a series of fresh claims / causes of action for the purpose of the Statute of Limitation. This can be particularly significant in the case of latent damage, which does not become apparent for some period. Although the Statute of Limitations in the Republic of Ireland allows an extension of a claim to the date of knowledge in personal injury cases, this does not apply to other classes of claim.
Multiple Possible Factors
In some cases of torts / civil wrongs, it may not be apparent to what extent a particular loss or damages is attributable to a particular defendant. This may occur where there has been exposure to harmful substances over a prolonged period, in the employment of successive employer, which has caused symptoms to emerge at a much later date. The matter may be complicated further, where medical and scientific discoveries at a certain point reveal that the exposure is dangerous,.
The effect may that the breach of duty and negligence arises at the latter point. To the extent that damage is referable to the period prior to the breach of duty, no recovery is allowed. Damages may be recovered in respect only of such of the injuries as occurred after the breach of duty.
An alternative possibility in the above case, is that a number of employees have breached their duties of care over a prolonged period. The court will endeavoured to ascertain on the evidence whether the claimant has proved that the defendants are responsible for the whole or a quantifiable part of the injury. The court has to do the best it can, using common sense to achieve justice.
In a number of English cases, a single employer fully liable, even though unquantifiable elements of the loss were attributable to each of a number of employers. The courts took the view that the claimant could succeed, if he can prove the defendant’s wrongful acts made a material contribution to the occupational disease, injury or disability. Although the UK position was that a defendant was liable only to the extent of the contribution, the loss was held to be indivisible and could not be apportioned.
A single state of affairs or incident may cause continuing and repetitive damage on a multiple or continuing basis, each of which is a separate wrong in itself. Trespass and nuisance commonly involve continuing wrongs. Trespass that involves leaving something on another’s land is continuing. In contrast, a trespass that involves digging a hole is a singular act.
Some breaches of contract are on-going, such as where there are a series of repeated actions which could be reversed at any time. In contrast, other actions with an on-going effect may be a consequence of a single action or matter.
A single act may cause separate distinct damage on various dates. In a famous case, an excavations caused subsidence for which damage was recovered. The same excavations caused later subsidence, causing new damage, which was recovered in a further action.
An injunction may be granted to prevent continuing wrongs, notwithstanding that they may constitute separate causes of action.
Where there is a single incident or circumstance, a claim for the entirety of damages incurred, must be taken in a single claim. This applies both to damage or loss incurred prior to the date of the hearing of the action, continuing and future losses.
Where there are separate claims or causes of action, there may be recovery for in a second claim in respect of loss that was not been in the ambit of the first claim.
The courts may exercise a jurisdiction if both claims are pending, to stay one as an abuse of process or to consolidate them and have them heard together. Where however, the prospective loss sought in the second claim could not have been foreseen at the time of the first claim, it may be allowed. There must be separate claims albeit that they arise from a single event or matter (e.g. continuing wrongs).
A claim for damages generally required that actual injury, loss or damage must be shown. Where there is no actual loss, the claimant may seek to affirm his rights and nominal damages may be awarded. Nominal damages may be awarded in all cases of breach of contract and torts / civil wrongs which are actionable in themselves.
It is sometimes said that the law presumes damages in every case where there is a breach of contract, tort/ civil wrong or breach of another’s rights such. This implies that award of nominal damages will be made, without proof of actual loss. It does not follow that a person may legitimately bring such a claim. A lodgement may be made which precludes the claimant from recovering his costs. See the separate section on settlements.
Nominal damages may be awarded where a breach or loss is shown, but it is not proved or quantified. A token award may carry a right to — to cost. The courts have traditionally granted a small nominal figure.
Costs are at the discretion of the court. Although cost usually follow the award, a person who receives nominal damages, may be denied costs. The courts may regard the claimant who recovers nominal damages only, as having effectively lost his case.