In theory, English law does not recognize “moral or intellectual” damage, such as was claimed by the South African Republic after the Jameson Raid. The law of Scotland allows a solatium for wounded feelings, as does French law under the name of dommage moral, éprouvé par la partie lésée dans sa liberté, sa sûreté, son honneur, sa considération, ses affections légitimes ou dans la jouissance de son patrimoine. Under this head compensation is awarded to widow, child or sister, for the loss of husband, parent or brother, in addition to the actual pecuniary loss (Dalloz, Nouveau Code civil, art. 1382). Claims of damage for negligence are defeated by proof of what is known as contributory negligence (faute commune). In other claims of tort, as already stated, the conduct of the claimant may materially reduce the amount of his damages.
In cases of damages to ships or cargo by collision at sea, the rule of the old court of admiralty (derived from the civil law and preserved by the Judicature Acts) is that when both or all vessels are to blame, the whole amount of the loss is divided between them. The rule appears not to apply to cases where death or personal injury results from the collision (“Vera Cruz,” 1884, 14 A.C. 59. “Bernina,” 1888, 13 A.C. 1).
Costs.—The costs of a legal proceeding are no longer treated as damages to be assessed by the jury, nor do they depend on any act of the jury. The right to receive them depends on the court, and they are taxed or assessed by its officers (see [Costs]). In a few cases where costs cannot be given, e.g. on compulsory acquisition of land in London, the assessing tribunal is invited to add to the compensation price the owner’s expense in the compensation proceedings.
Death.—In English law a right to recover damages for a tort as a general rule was lost on the death of the sufferer or of the delinquent. The cause of action was considered not to survive. This rule differs from that of Scots law (under which the claim for damages arises at the moment of injury and is not affected by the death of either party). The English rule has been criticized as barbarous, and has been considerably broken in upon by legislation, in cases of taking the goods of another (4 Edw. III., c. 7, 1330), and injuries to real or personal property (3 & 4 Will. IV., c. 42, 1833), but continues in force as to such matters as defamation, malicious prosecution and trespass to the person. By the Fatal Accidents Act 1846 (commonly called Lord Campbell’s Act), it is enacted that wherever a wrongful act would have entitled the injured person to recover damages (if death had not ensued), the person who in such case would have been liable “shall be liable to an action for damages for the pecuniary loss which the death has caused to certain persons, and although the death shall have been caused under such circumstances as amount in law to felony.” The only persons by whom or for whose benefit such an action may be brought are the husband, wife, parent and child (including grandchild and stepchild, but not illegitimate child) of the deceased. The right of action and the measure of damages are statutory and distinct from the right which the deceased had till he died. It was held in Osborne v. Gillett, 1873, L.R. 8 Ex. 88, and has since been approved (Clark v. London General Omnibus Co., 1906, 2 K.B. 648), that no person can recover damages for the death of another wrongfully killed by the act of a third person, unless he claims through or represents the person killed, and unless that person in case of an injury short of death would have had a good claim to recover damages.
In Scotland the law of compensation for breach of contract is substantially the same as in England. In cases of delict or quasi-delict, the measure of reparation is a fair and reasonable compensation for the advantage which the sufferer would, but for the wrong, have enjoyed and has lost as a natural and proximate result of the wrong, coupled with a solatium for wounded feelings. The claim for reparation vests as a debt when it arises and survives to the representatives of the sufferer, and against the representatives of the delinquent. In other words, the maxim actio personalis moritur cum persona does not apply in Scots law; and even in cases of murder there has always been recognized a right to “assythement.”
See also Mayne on Damages, 7th ed.; Sedgwick on Damage; Bell, Principles of Law of Scotland.
(W. F. C.)
[1] In the Indian Contracts Code (Act xii. of 1872), the rule is thus summarized:—
“When a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew when they made the contract to be likely to result from the breach of it. Such compensation is not to be given for any remote or indirect loss or damage sustained by reason of the breach.... In estimating the loss or damage arising from a breach of contract, the means of remedying the inconvenience caused by the non-performance must be taken into account” (§ 73).