water, and gas water company was held not liable where the water escaped companies. from the pipes in consequence of a fire-plug being forced out of its place by an unusual frost: Blyth v. Birmingham Waterworks Co.

11 Ex: 781.

The same may be said of gas companies with regard to their gasometers and mains.

CHAPTER V.

Of Damage and Damages.

THE relation of the damage to the injury, and the damages which may be recovered in respect of it, is perhaps one of the most important questions in the law of Torts.

without

The first principle is expressed in the old maxim, ex damno Damnum sine injuriâ non oritur actio: that is to say, damage which injuria gives is not the result of a legal injury does not give a cause of no action. action in other words, however great the damage which has been suffered, before the party suffering it is entitled to recover, he must prove a violation of a right possessed by him, or a breach of a duty owed to him.

Cases therefore in which the plaintiff fails to obtain a verdict are usually illustrations of the maxim; but it would serve no useful purpose to accumulate precedents in such a work as the present: a digest of them would amount to no more than a series of statements that such and such rights and duties, which have been claimed to exist, do not exist. One simple example must suffice by way of illustration.

Example where alleged right held not

to exist.

A claim was made for damages for what was called an "invasion of privacy by opening windows;" it was dismissed, for it was clear that the defendant had acted within his rights in opening the windows in his own house. The fact that by so doing he overlooked the plaintiff's property invaded no right in the plaintiff, because a right to privacy is unknown: Tapling v. Jones. And so in the common case of rivalry in 11 H. L. ca: trade: a man may be ruined by another shop being opened in the same street, or by another in the same trade underselling him, but he has no cause of action.

290.

Damages

awarded as compensation or punishment.

Compensation is the important principle.

Vindictive damages.

Special damages.

Remoteness of damage.

Division of the subject.

The important question now to be considered is, what damages a person is entitled to recover against a tortfeasor.

In torts the first principle of damages is that they are assessed by way of compensation to the party injured; the second, that they may also be assessed as a punishment to the party injuring.

Compensation, however, is the essential ingredient; and when the tort is established, a verdict for the plaintiff for the pecuniary equivalent, whatever this may be, must follow. In many cases of injury to property the damage is infinitesimal, and where this is the case the compensation is represented by the smallest copper coin of the realm. In injuries to the person or reputation the actual damage suffered is difficult to estimate; but if the jury are satisfied that some damage must in the usual course of events follow, although the parties might never be able directly to trace it to the injury (for example, the falling-off of custom-as distinguished from the loss of particular customers), or, if they think the right a valuable one (for example, the right to vote), they are justified in awarding substantial damages.

Again, the motive of the defendant may be taken into consideration, and vindictive damages may be awarded.

In addition to the general damages which may reasonably be supposed to flow from the injury, special damages may be alleged, and if proved recovered. That is, as the name imports, special items of damage which can be distinctly traced to the injury. For example, a doctor's bill and necessary journeys to the sea-side in cases of an injury to the person; loss of a specified customer from an injury to reputation; damage to a shrub from a trespass.

But for very obvious reasons some limitations to the liability of a man for the consequences of his acts have been introduced; these will have to be specially considered under the well-known head of Remoteness of damage.

The heads, therefore, under which the law as to the recovery

of damages must be considered are as follows:-Nominal Damages-Substantial Damages-Vindictive Damages-Special Damages-Remoteness of Damage.

We shall also have to consider the case of the right to recover damages for a peculiar or individual injury for the breach of a public duty.

§ 1. NOMINAL DAMAGES.

definition of

The most usually accepted definition of nominal damages is that given by Maule, J., in Beaumont v. Greathead. The 2 C. B. 494. term means, "in fact, a sum of money that may be spoken of but which has no existence in point of quantity." This prin- Maule, J.'s ciple has been applied to contracts with the strictest possible nominal interpretation of the words used; for where the plaintiff is damages. entitled to recover a debt and also nominal damages for its detention, the farthing is held to be merged in the greater amount of the debt. Thus, in the above case, payment of £50 was held to be a good discharge of a debt of £50 and damages. And again, the jurisdiction of a Court being limited to the recovery of £50 on contract, it was held that an action for £50 and nominal damages could be entertained: Joule v. 7 Ex: 58. Taylor.

But this definition, though it is perhaps satisfactory in cases of contract, can hardly be said to be applicable to cases of tort. In these cases we very frequently find verdicts for nominal damages so called, the amount given being one shilling in some cases, in others forty shillings. These two amounts, together with the farthing, in fact are the accepted forms which this verdict takes.

The subject of nominal damages is rendered somewhat difficult of satisfactory explanation by the introduction of what is frequently put forward as a third and independent rule of damages, namely, that the violation of a right entitles the

The rule that damages may always be recovered for

the violation

of a right, requires much owner of it to recover nominal damages: and the consequences consideration.

[cf: p. 306.]

The true rule is to be found in the principle of presumption of damage.

[ante, p. 11.]

Nominal damages

where tangible loss has occurred.

2 W. Bl: 1233.

4 T. R. 71. 2 East 154.

of this are said to be that as he is entitled to these damages, it is sufficient for him in some cases to prove the existence of the right, and the violation of it, and that whether he has suffered damage or not he is entitled to the verdict; whereas in other cases it is said that "special damage is the gist of the action," which leads us to suppose that in these cases the plaintiff must not only prove the existence of the right and the violation of it, but also that he has suffered from the violation.

We have already, in the introductory chapter, hinted that this might possibly be explained by supposing in the first class of cases, the right to exist simply; and in the second class, that it is a right not to be injured. Take slander for instance that I, a tradesman, have a right not to be called a seller of bad wares: but that I have only a right not to be damaged by being called an immoral man. No more unsatisfactory distinction could well be devised. The true answer is to be found, however, in the principles of presumption of damage, to which we shall have to make frequent reference. In some cases, from the very nature of the tort, the law presumes damage: that is, the plaintiff is not put to the trouble of proving it; in other cases, the law does not presume damage: that is, the plaintiff is required to prove its existence. This being so, the right, as we have already pointed out, is in all cases, not to be injured in my person, my reputation, or my property, as the case may be.

The cases in which nominal damages are given, may be, for the sake of illustration, divided superficially into two classes. The first is best illustrated by a group of cases in which actions have been brought by one commoner against another for surcharge of, or other damage to, the common: Wells v. Watling; Hobson v. Todd; Pindar v. Wadsworth. The question in them all was said to be this, whether any injury had been done to the common; any act that would lessen the profit of the common in the smallest degree. If this were proved in the affirmative it would support an action against