CHAPTER X.

DAMAGES.

Damages are of two kinds :

(i.) General.

(ii.) Special.

General Damages are such as the law will presume to be the natural or probable consequences of the defendant's words; they need not therefore be proved by evidence.

Special Damages are such as the law will not infer from the nature of the words themselves; they must therefore be specially claimed on the pleadings, and evidence of them must be given at the trial. Such damages depend upon the special circumstances of the case, upon the defendant's position, upon the conduct of third persons, &c., &c. Very probably they would not have been incurred, had the same words been spoken on another occasion, or to different hearers.

In some cases special damage is also a necessary

element in the cause of action. When on the face of them the words used by the defendant clearly must have injured the plaintiff's reputation, they are said to be actionable per se; and the plaintiff may recover a verdict for a substantial amount, without giving any evidence of actual pecuniary loss. But where the words are not on the face of them such as the courts will presume to be necessarily prejudicial to the plaintiff's reputation, there evidence must be given. to show that in fact some appreciable injury has in this case

followed from their use, or the plaintiff will be nonsuited. The injury to the plaintiff's reputation is the gist of the action; he has to show that his character has suffered through the defendant's false assertions: and where there is no presumption in plaintiff's favour, he can only show this by giving evidence of some special damage.

It will be convenient to divide this chapter into the following heads :

I.-General Damages.

II.-Special Damage, where the words are not tionable per se.

III.-Special Damage, where the words are actionable per se.

IV. Evidence for the plaintiff in aggravation of damages.

V. Evidence for the defendant in mitigation of damages :

(i.) Evidence falling short of a justification
(ii.) Previous publications by others.

(iii.) Liability of others.

(iv.) Absence of malice.

(v.) Plaintiff's bad character.

(vi.) Absence of special damage. (vii.) Apology and amends.

VI.-Remoteness of damages.

I. GENERAL DAMAGES.

General Damages are such as the law will presume to be the natural or probable consequence of the defendant's conduct. They arise by inference of law; and need not therefore be proved by evidence. Such damages may be recovered wherever the immediate tendency of the words is to impair the plaintiff's reputation, although no actual pecuniary loss has in fact resulted.

Such general damages will only be presumed where the words are actionable If per se. any special damage has also been suffered, it should be set out on the pleadings; but, should plaintiff fail in proving it at the trial, he may still of course resort to and recover general damages. (Cook v. Field, 3 Esp. 133; Smith v. Thomas, 2 Bing. N. C. 372, 380; 2 Scott, 546; 4 Dowl. 333; 1 Hodges, 353; Brown v. Smith, 13 C. B. 596; 22 L. J. C. P. 151; 17 Jur. 807; 1 C. L. R. 4.)

The jury should carefully consider the whole of the words complained of, and give the plaintiff such damages as in their opinion will fairly compensate him for the injury done to his reputation thereby. The amount of damages is "peculiarly the province of the jury." (Davis & Sons v. Shepstone, 11 App. Cas. at p. 191; 55 L. T. at p. 2.) They will of course be influenced by the circumstances attending the publication, by the character of the defamatory words, by their falseness, by the malice displayed by the defendant, or the provocation given by the plaintiff. They may also fairly take into their consideration the rank and position in society of the parties, the mode of publication selected, the extent and long continuance of the circulation given to the defamatory words, the tardiness or inadequacy, or entire absence, of any apology, the fact that the defendant could have easily ascer

tained that the charge he made was false, &c., &c. Where the words affect a trader in the way of his trade, figures may be laid before the jury, showing that his business has fallen off in consequence. (Harrison v. Pearce, 1 F. & F. 569; Evans v. Harries, 1 H. & N. 251; 26 L. J. Ex. 31; Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 471; 4 Jur. 151; 9 C. & P. 326; post, p. 308.) Even if no evidence be offered by the plaintiff as to damages, the jury are in no way bound to give nominal damages only; they may read the libel and give such substantial damages as will compensate the plaintiff for such defamation. (Tripp v. Thomas, 3 B. & C. 427.)

The damages which the jury award a plaintiff may be either,

(i.) contemptuous,
(ii.) nominal,

(iii.) substantial, or
(iv.) vindictive.

(i.) Contemptuous damages are awarded when the jury consider that the action should never have been brought. The defendant may have just overstepped the line, but the plaintiff is also somewhat to blame in the matter, or has rushed into litigation unnecessarily; so he only recovers a farthing or a shilling. There is no necessary inconsistency in a jury finding that a libel was written maliciously and yet awarding only a farthing damages. (Cooke v. Brogden & Co. 1 Times L. R. 497.)

(ii.) Nominal damages are generally awarded on a compromise, where the plaintiff has not suffered any special damage and does not desire to put money into his pocket; he has cleared his character, and is content to accept forty shillings and his costs.

(iii.) Substantial damages are awarded where the jury seriously endeavour, as men of business, to arrive at a figure which will fairly compensate the plaintiff for the injury he has sustained.

(iv.) Vindictive or retributory or exemplary damages are awarded where the jury desire to mark their sense of the defendant's harsh and unfeeling conduct, by fining him to a certain extent; they therefore punish the defendant by awarding the plaintiff damages in excess of the amount which would be adequate compensation for the injury inflicted on his reputation. Thus, in a recent case, where a letter was sent privately to one person only, on whom it made no impression, as she did not believe a word contained in it, the jury yet awarded £3,000 damages, on the ground that "there must have been some vindictiveness." (Adams v. Coleridge, 1 Times L. R. at p. 87.) It is clearly competent to a jury to find vindictive damages in an action of libel or slander. (Lord Townshend v. Hughes, 2 Mod. 150; Emblen v. Myers, 6 H. & N. 54; 30 L. J. Ex. 71; Bell v. Midland Rail. Co., 10 C. B. N. S. 287; 30 L. J. C. P. 273; 9 W. R. 612; 4 L. T. 293.)

"The damages in such an action are not limited to the amount of pecuniary loss which the plaintiff is able to prove." (Davis & Sons v. Shepstone, 11 App. Cas. at p. 191; 55 L. J. P. C. 51; 34 W. R. 722; 55 L. T. at p. 2.)

The jury must assess the damages once for all (Gregory and another v. Williams, 1 C. & K. 568); no fresh action can be brought for any subsequent damage (Fitter v. Veal, 12 Mod. 542; B. N. P. 7), except where the words are not actionable per se (post, p. 306). They should, therefore, take into their consideration not only the damage that has accrued, but also such damage, if any, as will arise from the defendant's defamatory words in the future. (Lord Townshend v. Hughes, 2 Mod. 150; Ingram v. Lawson, 6 Bing. N. C. 212; 8 Scott, 471, 477; 4 Jur. 151; 9 C. & P. 326.) They should compensate the plaintiff for every loss which would naturally result from the words employed; but not for merely problematical damages that may possibly happen but probably will not. (Per De Grey, C. J., in Onslow v. Horne, 3 Wils. 188; 2 W. Bl. 753; and Bayley, B.,

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