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Published online by Cambridge University Press: 16 January 2009
The rules of the substantive law of damages on the one hand and the rules of pleading on the other ought to be kept strictly apart, for although a faulty pleading, if not amended in time, may dcprive a plaintiff of compensation for some part of his damage as effectively as a decision that the damage is too remote, the substantive law can only be rationally considered on the assumption that any case coming under discussion has been properly pleaded. It should follow, therefore, that the distinction between special and general damages is one solely belonging to the rules of pleading. If an item of special damage has been inadequately pleaded. or proved it cannot be recovered, but this is a consequence of failure to comply with those rules. It has no bearing on the substantive law whatever. It does appear, however, that there is at present some confusion as to the nature of the distinction between special and general damages and that this confusion is indirectly affecting the substantive law in certain types of case—notably actions for damages for personal injury.
1 The term was also sometimes used to describe damage alleged in the “per quod”: Bourden v. Alloway (1709) 11 Mod. 181; Scott v. Shepherd (1773) 2 Wm.Bl. 892.
2 (1699) 1 Ld.Raym. 486, 488. See also Law v. Harwood (1629) Cro.Car. 140.
3 Ashby v. White (1703) 2 Ld.Raym. 938, 955.
4 The term “special damage” is still sometimes used even today to describe the damage a plaintiff must prove in an action for slander, but “actual damage” is now preferred.
5 At p. 12. See also per Bowen L.J. in Ratcliffe v. Evans [1892] 2 Q.B. 524, 528. General damage is, “damage which the law implies in every breach of contract and every infringement of an absolute right: see Ashby v. White. In all such cases the law presumes that some damage will flow from the mere invasion of the plaintiff's rights, and calls it general damage.”
6 Per Bowen L.J. in Ratcliffe v. Evans [1892] 2 Q.B. 524, 529. Italics mine.
7 See e.g., Bullen and Leake, 11th ed., p. 38.
8 Per Lord Macnaghten in Ströms Bruks Aktie v. Bolag v. John & Peter Hutchison [1905]Google Scholar A.C. 515, 525.
9 Per Viscount Dunedin in The Susquehanna [1926]Google Scholar A.C. 655, 660.
10 London & Northern Bank Ltd. v. George Newnes (1900)Google Scholar 16 T.L.R. 433.
11 Hayward v. Pullinger & Partners Ltd. [1950]Google Scholar 1 All E.R. 581.
12 Bullen & Leake, 3rd ed., p. 13; Smith v. Thomas (1835) 2 B ing.N.C. 372, 380, per Tindal C.J.
13 [1960] 3 W.L.R. 29. Leave to appeal to the House of Lords in this case has been granted. See also The Susquehanna [1926]Google Scholar A.C. 655.
14 [1956] A.C. 185, 206.
15 This qualification recognises that there may be an element of uncertainty even in the calculation of the loss of earnings which has already accrued— e.g., because the plaintiff might not have been able to continue earning at his pre-accident rate even if he had not been disabled: see per Brett L.J. in Phillips v. London & South Western Ry. (1879) 5 C.P.D. 280, 291; Rouse v. Port of London Authority [1953]Google Scholar 2 Lloyd's Rep. 179.
16 See Shearman v. Folland [1950]Google Scholar 2 K.B. 43 for the view that all prospective damage is necessarily general damage—presumably because prospective damage cannot be exactly calculated. It is not the case that all prospective damage can be presumed.
17 The calculation itself should, in effect, be pleaded with the greatest possible precision in order that the defendant may know the case he has to meet: Anglo-Cyprian Trade Agencies v. Payhos Wine Industries [1951]Google Scholar 1 All E.R. 873.
18 [1960] 3 W.L.R. 29. See ante, p. 217.
19 [1900] A.C. 113, 117. See also per Viscount Dunedin in The Susquehanna [1926]Google Scholar A.C. 655, 660.
20 This does not, of course, mean that there are no principles for the assessment of general damages. The jury, if there be one, must act under proper direction: The Chekiang [1926]Google Scholar A.C. 637, 643 per Lord Sumner.
21 (1879) 4 Q.B.D. 406; (1879) 5 Q.B.D. 78;(1879) 5 C.P.D. 280.
22 See, e.g., per Bramwell L.J. (1879) 5 C.P.D. at p. 287.
23 Per Brett L.J. (1879) 5 C.P.D. at p. 289.
24 For examples of cases where the pecuniary loss was assessed with great attention to detail, see Phillips v. L. & S.W.Ry., ubi supra, and Billingham v. Hughes [1949]Google Scholar 1 K.B. 643.
25 Cases in authenticated reports are not easy to find, presumably because the point is obvious. But see Jones v. Richards [1955]Google Scholar 1 W.L.R. 444, 458 and the unreported case of Horne v. Harding [1953]Google Scholar cited Kemp & Kemp, Quantum of Damages in Personal Injury Claims, p. 158.
26 [1956] A.C. 185, 206. See ante, p. 217. For a case where these “special” damages could not be precisely calculated see Rouse v. Port of London Authority [1953]Google Scholar 2 Lloyd's Rep. 179.
27 [1957] 2 Q.B. 154.
28 Ibid, at p. 166.
29 The plaintiff could not rely upon the action per quod servitium amisit in view of Att.-Gen. for New South Wales v. Perpetual Trustee Co. [1955]Google Scholar A.C. 457 and Inland Revenue Commissioners v. Hambrook [1956]Google Scholar 2 Q.B. 641. Moreover, the constable was in no sense a servant of the plaintiff.
30 See Dennis v. L.P.T.B. [1948]Google Scholar 1 All E.R. 779.
31 See Brook's Wharf & Bull's Wharf v. Goodman [1937]Google Scholar 1 K.B. 534; Whitham v. Bullock [1939]Google Scholar 2 K.B. 81.
32 [1960] 2 W.L.R. 169.
33 [1960] 3 W.L.R. 460.
34 Ante, p. 156.
35 [1938] 1 K.B. 256.
36 Ibid, at p. 263.
37 [1960] 2 W.L.R. 861.
38 See ante, p. 160.
39 Ibid.
40 [1953] 1 Q.B. 617.
41 Ibid, at p. 633.
42 Ibid, at p. 631.
43 [1960] 2 W.L.R. at. p. 863.
44 But on the basis that general damage means damage not capable of exact calculation, then both were thinking in terms of general damage—but different kinds of general damage.
45 See the criticism of Harris' case in Kemp & Kemp, Quantum of Damages in Personal Injury Claims, p. 91.
46 [1955] 1 W.L.R. 1049.
47 Ibid, at p. 1064.
48 Ibid.
49 [1960] 2 W.L.R. at p. 867.
50 [1956] A.C. 185.
51 Seventh Report (Effect of Tax Liability on Damages) August, 1958. Cmnd. 501.
52 Jolowiez, “Damages and Income Tax” [1959] C.L.J. 86. See also Tucker, ibid., p. 185.