Report No. 69

8.21. Breach of contract of marriage.-

Similarly, in an action for breach of contract of marriage, injury to feelings would enter into the realm of damages.1

1 Hamson v. Great Northern Railway Company, 36 LJ Exch 20.

8.22. Character.-

In certain cases, character of the parties may be relevant in regard to damages; this is specifically dealt with by another section.1 In actions for seduction or enticement, the character of the woman may be relevant for mitigating the damages.

1 Section 55.

8.23. Statements.-

Statements may be admissible under section 12, on the facts. Where a defamatory statements.1 imputing misconduct to a man in relation to his step-daughter, is the foundation of the suit, and, in defence, truth is pleaded, evidence that the step-daughter herself had been spreading rumours abroad that her step-father had been making improper advances to her, is relevant under section 12, in order to assist the court in assessing the damages awarded,2 though it is mere hearsay as regards the truth of the libel.

1 Me Sein Tin v. U. Kyaw Maung, AIR 1936 Rang 332.

2 Apparently as increasing the extent of harm owing to repetition of the libel.

8.24. Non-material losses.-

In cases of grave personal injury, the level of awards for pain and suffering is often high, particularly in Western countries. This is because there cannot be any precise and objective yardstick for translating non-material losses into monetary terms.

8.25. Reason for compensation.-

The question may be asked why the law should measure, in monetary terms, losses which have no monetary dimension. In 1900, Lord Halsbury said1-"What manly mind cares about pain and suffering that is past." The answer is that monetary compensation is the best that the law can afford. It is often pointed out that in assessing "general" damages, the law usually purports to give compensation and not restitution.2

1. Medina, 1900 AC 113 (117).

2. British Transport Commission v. Curley, 1956 AC 185 (208, 212) (House of Lords).

8.26. Mental anguish and breach of contract.-

In recent times, the question how far damages can be awarded for mental anguish as a result of breach of contract has also come up prominently-for example, in cases when promised accommodation in a hotel or elsewhere has not been given by travel agencies or others undertaking such obligation by contract,1 and this failure on their part has spoiled a holiday.

1. Urvis v. Swan Tours, (1973) 1 All ER 71.

8.27. Judge Wymanski's charge to the jury.-

In an action on an alleged libel appearing in the Saturday Evening Post, the jury, returning after 11 hours, was unable to agree and was excused. Judge Wymanski's careful and detailed charge1 to the jury is a classic. He said-

"In a libel suit2 the appropriate measure of damages is the loss of reputation suffered by the plaintiff, the physical pain which he has suffered, and the mental anguish which he has suffered. You will note that 1 have said the suffering must be by him, not by others. You cannot, under any circumstances, include punitive damages. You may, however, properly take into account malice, if you find that there is malice, and you may enhance damages on account of malice. You are entitled to take into account the standing of the plaintiff in the community and group in which he moves.

You are entitled to take into account the extent of the publication of which complaint is made. All those are proper elements. Under the pleadings in this case, no special damage of a technical nature is alleged, and so you cannot consider any pecuniary loss which the plaintiff may have suffered, nor can you consider the loss of an election, if the loss of the election was in any way attributable to the publication. You must forget that entirely. As to damages-damages are an element about which a Judge has no better knowledge than a jury. You are practical men.

You know what the consequences practically are of articles which are defamatory and not true or privileged, and articles which are defamatory and are malicious. I do not suggest that this article is defamatory or malicious or untrue or unprivileged. I take no position on that matter. That is for you. But if you should decide that you have to consider the question of damages, then, gentlemen, your experience is sufficient to decide the matter, and twelve of you are much better estimators than I alone would be.".

1. Curley v. Curtis Pub. Co., 48 F Supp 29 (D. Mass. 1942).

2. Gregory and Kelven Cases and Materials on Torts, (1969), p. 1039.

8.28. Damages and compensation.-

According to some English cases, there is an evident distinction, almost etymological in nature-between the terms 'damages" and "compensation". While the term "damages" is used in reference to pecuniary recompense awarded in reparation for a loss or injury caused by a wrongful act or omission, the term "compensation" is used in relation to a lawful act which caused the injury in respect of which an indemnity is obtained under the provisions of a particular statute.

8.29. Thus, Esher M.R. said,1 "The expression compensation is not ordinarily used as equivalent for damages. It is used in relation to a lawful act which has caused injury. Therefore, that word would not, I think, include damages at large."2-3 We shall revert to this aspect later.

1. Per Esher, M.R., in Dixon v. Calcraft, (1892) 1 QB 458: 61 LJQB 529: 66 LT 554.

2. See also Mookerjee, J. in Muhammad Mazaharal Ahmad v. Muhammad Azimuddin, AIR 1923 Cal 507 (511).

3. See also per Fazl Ali, J. in Ram Rachhya Singh v. Raghunath Prasad, AIR 1930 Pat 46 (49, 50).

8.30. Damages and compensation.-

It may be noted that so far as the expression "damages" is concerned, it is confined to civil cases, but the legal system of many countries imposes an obligation on the criminal court to deal with claims for compensation. The provision may be framed in terms of "punishment", or as a direct one for compensation. But whatever be the form adopted, the principal idea is prompt payment of reparation to the victims for the injury caused by the offender.

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