The plaintiff alleged the wrongful repudiation by the defendant of a contract between them. The court considered the requirements as to what had to be pleaded in a claim for damages.
Held: Where a plaintiff claims that he has suffered damage, ie injury, of a kind which is not necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extend of the damages, ie the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into Court, and the mere statement or prayer that he claims damages will not support a claim for such damages.
Lord Donovan said: ‘There is plenty of authority for the proposition that a plaintiff need not plead general damage; but since the expressions ‘special damage’ and ‘special damages’ are used in such a wide variety of meanings, it is safer to approach this question by considering what a plaintiff is required to plead rather than what he is not.
The Rules of the Supreme Court are of no direct assistance. Ord 18, r.7, requires that every pleading shall contain a summary of the material facts and by Rule 12 ‘every pleading must contain the necessary particulars of any claim . .’ By rule 15 ‘a statement of claim must state specifically the relief or remedy claimed. It follows that the necessity of pleading ‘damage’ (meaning injury) or ‘damages’ (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall ‘put the defendants on their guard and tell them what they have to meet when the case comes on for trial. (per Cotton LJ in Philipps v Philipps (1878) QBD 127, 139).
Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claim will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court.
The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case. ‘The question to be decided does not depend on words, but is one of substance’ (per Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at p 529).
The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is ‘special’ in the sense that fairness to the defendant requires that it be pleaded.
The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.
. . if the claim is one which cannot with justice be sprung on the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed. As Lord Dunedin said in Susquehanna [1926] AC 655 at p 661 ‘if the damage be general, then it must be averred that such damage has been suffered, but the quantification of such damage is a jury question.’
What amounts to a sufficient averment for this purpose will depend on the facts of the particular case, but a mere statement that the plaintiffs claim ‘damages’ is not sufficient to let in evidence of a particular kind of loss which is not a necessary consequence of the wrongful act and of which the defendants are entitled to fair warning.’
Judges:
Lord Donovan
Citations:
[1969] 1 WLR 570
Cited by:
Cited – Whalley v PF Developments and Another CA 14-Feb-2013
The claimants appealed against the level of damages awarded to them in respect of a trespass by the respondent developer. The judge had rejected the claim for unpleaded special damages. The claimants said that the sums had been covered in the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Damages
Updated: 04 May 2022; Ref: scu.514229