©The Star (Used by permission)
Articles of Law
By Bhag Singh
The difference between general damages and special damages is that the former is initially quantified by the person making the claim, while the latter is assessed by the court.
COURT cases relating to civil claims usually involve a claim for damages. In some cases, a party may be seeking what is referred to as specific relief. This may be in terms of an order to prevent the performance of an act or compelling the performance of a specific act.
In the majority of instances, the claim is eventually a monetary one. Hence one often comes across the terms “general damages” and “special damages”. A reader asks: “What difference does it make whether it is general or special damages? After all, it is a matter of the amount awarded.”
From the point of view of an individual, all that matters is that the money awarded is received, unless specific relief is sought and money is not an important consideration to the claimant.
COURT cases relating to civil claims usually involve a claim for damages. In some cases, a party may be seeking what is referred to as specific relief. This may be in terms of an order to prevent the performance of an act or compelling the performance of a specific act.
In the majority of instances, the claim is eventually a monetary one. Hence one often comes across the terms “general damages” and “special damages”. A reader asks: “What difference does it make whether it is general or special damages? After all, it is a matter of the amount awarded.”
From the point of view of an individual, all that matters is that the money awarded is received, unless specific relief is sought and money is not an important consideration to the claimant.
By virtue of the Specific Relief Act 1950, it is stated that specific relief is given by taking possession of certain property and delivering it to a claimant or by ordering a party to do the very act which he is under an obligation to do or by preventing a party from doing that which he is under an obligation not to do, and finally by determining and declaring the rights of parties otherwise than by an award of compensation.
Otherwise, it matters little to the aggrieved person as to whether it is general or special damages. The value to the individual lies in the actual money received. What you call it may not matter.
Special damages
In ordinary language, the term “special damages” has really nothing special about it. The Oxford Advanced Learners Dictionary explains the word “special” as meaning “not ordinary or usual” and also “different from what is normal”.
However, in law the phrase “special damages” is used to refer to an amount that is claimed because of a breach or wrongful act of another where such an amount can be quantified. Thus, where a person’s property is damaged as a result of the wrongful act of another, it would usually be possible to quantify the loss in terms of the amount of money involved.
When such amount can be determined as in the case of cost of repairs, replacement or restitution, it is referred to as special damages. This is because in the case of damage to property, there would be a need to repair an item or replace certain parts of the item damaged. The cost of repair or replacement would fall into the category of special damages.
Similarly, if a person is injured in an accident, then the costs involved in being treated at a clinic or a hospital can be quantified in terms of money which would be in ringgit and sen.
In other cases, a person may seek to recover a fixed amount from another on account of services rendered or money lent or goods sold and delivered. Here, too, the amount is fixed but the words used to describe such amount are “liquidated sum”.
General damages
On the other hand, there are occasions where though a loss is suffered or damage is experienced, it may not be possible at the outset for the aggrieved person to immediately quantify the damage or loss in monetary terms.
One example is where there is damage in the form of bodily injury or adverse effect on a person’s reputation. In such a situation or event, it is not possible to measure it in any specific way, at least initially, as to what monetary value is to be placed on what has happened.
So when an individual suffers a personal injury following an accident, there is no way of placing a monetary value at the outset. For the individual concerned, it is a matter of discomfort, pain and suffering.
In other situations, a person’s reputation may be damaged. Here again it is not possible to translate the effect of what has been said directly into monetary terms. This is because the effect of defamatory statements may be felt in different ways by different people. It would also differ depending on who made the statement and who is the subject of the statement and how and in what circumstances it was made.
Assessment by the court
Whilst in the case of special damages the amount claimed has to be proved by the person claiming, the amount in the case of general damages depends on an assessment by the court itself.
Of course, where it is a matter of special damages, it does not mean that the aggrieved person can get all that he wants. In such instances, he will have to prove that such expenditure was incurred. In addition, it will have to be shown that such amount was reasonably incurred.
On the other hand, when it involves general damages, the amount to be awarded is in the hands of the court. The court will award a sum which would be fair compensation in monetary terms for the person’s pain and suffering or the trauma experienced. Previous instances of amounts awarded for such occurrences should provide a guideline.
Conclusion
These are the considerations that highlight the difference between general damages and special damages. A significant point is that the court takes a different approach in dealing with such situations in instances where the other party does not respond to the claim.
This is illustrated by situations whereby a default judgment is entered because the defendant does not enter an appearance or file a defence. Where the amount claimed is special damages or a liquidated sum, the court will likely enter default judgment for the amount claimed if the opposite party does not appear.
On the other hand, where what is claimed are general damages, it would be incorrect to enter judgment for the amount claimed as general damages merely by reason of the default. In such cases, the court will allow interlocutory judgment to be entered, with regard to liability, and order damages to be assessed. If this is not done and the amount claimed as general damages is allowed without assessment, it could well be an irregular judgment.
Otherwise, it matters little to the aggrieved person as to whether it is general or special damages. The value to the individual lies in the actual money received. What you call it may not matter.
Special damages
In ordinary language, the term “special damages” has really nothing special about it. The Oxford Advanced Learners Dictionary explains the word “special” as meaning “not ordinary or usual” and also “different from what is normal”.
However, in law the phrase “special damages” is used to refer to an amount that is claimed because of a breach or wrongful act of another where such an amount can be quantified. Thus, where a person’s property is damaged as a result of the wrongful act of another, it would usually be possible to quantify the loss in terms of the amount of money involved.
When such amount can be determined as in the case of cost of repairs, replacement or restitution, it is referred to as special damages. This is because in the case of damage to property, there would be a need to repair an item or replace certain parts of the item damaged. The cost of repair or replacement would fall into the category of special damages.
Similarly, if a person is injured in an accident, then the costs involved in being treated at a clinic or a hospital can be quantified in terms of money which would be in ringgit and sen.
In other cases, a person may seek to recover a fixed amount from another on account of services rendered or money lent or goods sold and delivered. Here, too, the amount is fixed but the words used to describe such amount are “liquidated sum”.
General damages
On the other hand, there are occasions where though a loss is suffered or damage is experienced, it may not be possible at the outset for the aggrieved person to immediately quantify the damage or loss in monetary terms.
One example is where there is damage in the form of bodily injury or adverse effect on a person’s reputation. In such a situation or event, it is not possible to measure it in any specific way, at least initially, as to what monetary value is to be placed on what has happened.
So when an individual suffers a personal injury following an accident, there is no way of placing a monetary value at the outset. For the individual concerned, it is a matter of discomfort, pain and suffering.
In other situations, a person’s reputation may be damaged. Here again it is not possible to translate the effect of what has been said directly into monetary terms. This is because the effect of defamatory statements may be felt in different ways by different people. It would also differ depending on who made the statement and who is the subject of the statement and how and in what circumstances it was made.
Assessment by the court
Whilst in the case of special damages the amount claimed has to be proved by the person claiming, the amount in the case of general damages depends on an assessment by the court itself.
Of course, where it is a matter of special damages, it does not mean that the aggrieved person can get all that he wants. In such instances, he will have to prove that such expenditure was incurred. In addition, it will have to be shown that such amount was reasonably incurred.
On the other hand, when it involves general damages, the amount to be awarded is in the hands of the court. The court will award a sum which would be fair compensation in monetary terms for the person’s pain and suffering or the trauma experienced. Previous instances of amounts awarded for such occurrences should provide a guideline.
Conclusion
These are the considerations that highlight the difference between general damages and special damages. A significant point is that the court takes a different approach in dealing with such situations in instances where the other party does not respond to the claim.
This is illustrated by situations whereby a default judgment is entered because the defendant does not enter an appearance or file a defence. Where the amount claimed is special damages or a liquidated sum, the court will likely enter default judgment for the amount claimed if the opposite party does not appear.
On the other hand, where what is claimed are general damages, it would be incorrect to enter judgment for the amount claimed as general damages merely by reason of the default. In such cases, the court will allow interlocutory judgment to be entered, with regard to liability, and order damages to be assessed. If this is not done and the amount claimed as general damages is allowed without assessment, it could well be an irregular judgment.