Lloyd's Maritime and Commercial Law Quarterly
Damages
Rt Hon Lord Scott of Foscote*
This paper considers the various descriptions that are accorded to awards of damages and argues that there are in fact only two legitimate purposes for the award of damages in a civil suit, namely (1) compensation for loss or damage caused by wrongful conduct and (2) vindication of a right that has been violated by wrongful conduct
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It is an obvious truth that good law is simple law that can be easily understood. Law that can be understood only by lawyers does not satisfy this requirement. Many of the complexities of law are not the fault of lawyers, but are thrust upon the public by the legislators and the regulators. There is nothing the lawyers can do about that—unless they happen to be parliamentary draftsmen—but, even if they are, their influence is limited to producing in as simple and coherent a form as possible statutes and regulations that achieve the wishes of their executive and legislative masters. However, there are vast areas of the common law that have been left untouched, or virtually untouched, by the legislators. In these areas the uncertainties and complexities, produced by an ever developing jurisprudence, are judge-led. I do not intend to downplay the role of academic lawyers and practising lawyers. Their ideas of how the common law should develop in order to meet the changing needs of a changing society are valuable and often highly influential. But, in the last resort, it is the judges, dealing with actual cases, whose acceptance or rejection, or sometimes modification, of the ideas and analytical criticism placed before them by academic lawyers and by professional lawyers acting for actual clients, who shape the development of the law. And if the law they shape appears incoherent, unprincipled or unclear, it is the judges at whom the finger of blame should be pointed.
This is all trite stuff, well-known to all who practise the law, and it is no more than an introduction to what I want to say about damages—an area of the common law largely, although not entirely, untouched by statutory reform but some aspects of which are at risk, I believe, of becoming—if they have not already become, incoherent.
The incoherence is supported by the number of adjectives attached to the noun “damages” and intended, I suppose, to indicate important distinctions. The reported cases speak of compensatory damages, aggravated damages, restitutionary damages, exemplary damages, punitive damages, vindicatory damages and now as I have discovered from the ABA Journal
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curative damages. This proliferation of adjectives suggests a variety of different purposes for the award of damages. It underlines the over-complication of what