LEGAL VIEWPOINT: Award of damages by Courts by Dr AbdelGadir Warsama Ghalib, Principal Legal Counsel, Bahrain

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Dr AbdelGadir Warsama Ghalib, Principal Legal Counsel, Bahrain

Aggrieved parties seek justice and rule of law by resorting and submitting their claims to judicial Courts, wherein there is a ruling as proved before Courts.  Such rule may award damages depending on the merits of each case.

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The object of an award of damages, by Courts, is to give the plaintiff some compensation for the damages, loss or injury he has suffered. The elements of damage recognized as such by the law are normally divided into two main groups pecuniary and non-pecuniary loss.

The pecuniary loss is the one that comprises all financial and material loss incurred, such as loss of business profits or expenses of medical treatment or breach of contract., etc. Whereas, the non-pecuniary loss is the other that comprises all loses which do not represent personal financial or material assets, such as physical pain or injury to feelings., etc.  Moreover, the pecuniary loss being a money loss which is capable of being arithmetically calculated in money, even though the calculation must sometimes be a rough one where there are difficulties of proof. The non-pecuniary loss, on the other hand, is not so calculable. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money. By all means, it is the best that a Court (can) do.

Lord Blackburn in a famous precedent defined the measure of damages as “that sum of money which will put the party who has been injured or that who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or repatriation”. This statement has been consistently referred to as a good acceptable explanation for the issue. While the above statement does good service as a rule covering both tort and contract, the rule is that the plaintiff is entitled to be placed, so far as money can do it, in the same position as he would have been in had the contract, for example, been performed.

The above general rule is however only a starting point, for upon it several important limits are to be considered which may result in the plaintiff recovering less than the amount which would put him in the position he would have been had the tort or breach of contract never been committed. However, in many cases, it has been clearly stated that insisting on claiming such full compensation would be too harsh upon defendants.

Based on this, the loss for which the plaintiff will be compensated is cut down by a variety of factors, thus the plaintiff cannot recover damages for that part of the loss due to his contributory negligence, nor for such loss of which the defendants conduct is not the cause , nor for such loss which is not within the scope of the protection of the particular tort or contract, nor for loss which he should have avoided, nor for loss which is too uncertain  and so on in other similar instances, all grouped together and looked at as remote, known as “remoteness of damages”. All that is classified under “remoteness of damages”, delimit the consequences and loses for which the plaintiff can recover “full” compensation.

The issue of awarding damages, in most cases is very complicated and tiresome to Courts and other parties. Also, in most cases, it is not accepted by the plaintiff nor the defendant, as they stand in opposite place to each other. Always, this issue remains under endless discussions and the matter goes on as long there are two opposing parties with different views. The Courts are required to be more careful and just in awarding damages, at least, in a way to represent the spirit of justice and rule of law.