Report No. 69
Relevancy in Particular Cases
Sections 5 to 11, which were dealt with in the previous Chapter,1 were concerned with certain facts that would be relevant in the generality of cases. With section 12 begins a group of sections dealing with facts that are relevant in particular cases.
1. Chapter 7.
8.2. Section 12.-
Section 12 provides that in suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded, is relevant. The section, of course, postulates the existence of the liability to pay damages. It does not deal with the principles of liability to pay damages.
8.3. According to Mayne1, damages are the pecuniary satisfaction obtainable by success in an action.
1. Mayne on Damages, cited in Kameshwar Rao Damages, (1953), p. 15.
8.4. Facts which show the extent of the loss are relevant under section 12. Sometimes, actual damages-often called special damage1-must be proved in order to show a cause of action in a tort not actionable per se. In such cases, it is a fact in issue, since the existence of the liability depends thereon.
1. Iverson v. Moore, (1699) 1 Ld Ray 486 (488) (per Gould, J.).
8.5. Points relevant for limitation as well as damages.-
There are some points which may be relevant both for the purposes of limitation and for the purpose of damages. For example, the distinction between continuing and other torts is important, both with regard to damages and with regard to limitation for suits.1 As regards limitation, a fresh period of limitation begins to run at every moment of time during which the breach of contract or the tort continues.
1. Section 22, Limitation Act, 1963.
8.6. Where the defendant has committed a continuing tort (such as, a private nuisance) the damages are assessed so as to compensate the plaintiff for the harm suffered until the date of the trial. If the defendant continues the tort after that, the plaintiff can bring fresh proceedings, to obtain compensation for the further injury suffered until the second trial. He can sue "from day to day" or do die in diem, until the defendant discontinues the tort.
8.7. On the other hand, where the tort is not a continuing tort,1 the plaintiff can sue only once. He does not get a fresh starting point for limitation. The damages have also to be assessed once and for all. The future consequences of the tort have to be assessed and evaluated, as well as the losses actually suffered already.
1. Abdulla v. Abdulla, AIR 1924 Bom 290.
8.8. Evidence of damages under section 5.-
It may be noted also that the definition of "fact in issue" in the Act1 covers facts from which, inter alia, the extent of any liability asserted in any suit or proceeding necessarily follows. In suits in which damages are claimed, therefore, the amount of the damages is a fact in issue. So long as the evidence pertaining to damages is confined to arithmetical calculations to indicate the extent of the harm caused by a breach of contract or tort such evidence would be admissible under section 5, being directly, related to a fact in issue, and recourse to section 12 is not necessary for admitting such evidence.
1. Section.-"fact in issue".
8.9. Questions of detail.-
However, very often, questions of detail may arise in relation to damages. The principles on which damages are to be assessed belong to the domain of the substantive law applicable to the case-for example, the question as to when damages may be recovered, the amount of damages recoverable in particular suits, the defence which can be pleaded, and the like. The facts necessary for applying these principles, however, could be of wide variety.
It is, apparently, for this reason that section 12 does not specify how the facts made relevant by the section are to be related with the interest injured by the civil wrong that constitutes the cause of action. It lays down, in general words, that evidence which will enable the court "to determine" the amount of damages, is admissible. This would certainly include evidence which tends to increase or diminish the damages.1
1. See Norton, p. 124, cited by Woodroffe.
8.10. Suits for defamation as illustrative aggravating factor.-
Thus, for example, in a suit for damages for defamation, where injury to the feelings is an element to be considered in computing the quantum of damages, this aspect is of importance. The circumstances of time and plac.- the time when, and the place where, the defamatory issue was given-require different damages. As has been said1 by Bathurst J., "it is a greater insult to be beaten upon the Royal Exchange than in a private room".
1. Tutlidge v. Wade, (1769) 3 Wills 19.