Odger's English Common Law

INJURIA ET DAMNUM. 421
liability, e.g., for a breach of contract committed by an infant,
or for personal injury caused by negligence where the party
injured has, by want of ordinary care, himself contributed to
cause the damage of which he complains, or again where
the express words or general scope of a statute bar the remedy
by action. 1
But these are cases in which the circumstances
afford the defendant a good defence to what was prima
facie a good cause of action; whereas we are at present
dealing with cases ia which the plaintiff has no right of action,
and therefore the defendant need call no evidence in answer
to it.
In the vast majority of cases, however, which are brought
into Courts of justice, if both injuria and damnum be proved
in support of the claim, the plaintiff has a good cause of
action, and will be entitled to judgment for at least nominal
damages.
In actions for breach of contract the amount of the debt,
or of the damages which ought to be awarded, can as a rule
be ascertained beforehand ; it was either agreed by the parties
at the time of the contract or it is fixed by the charges
which are regular and usual in the trade or profession. Such
damages are said to be liquidated. But in most actions of
tort the damages are unliquidated ;
the amount to be recovered
depends upon all the circumstances of the case and on the
conduct of the parties, so that one cannot say beforehand
whether the jury will award the plaintiff a farthing, forty
shillings or a hundred pounds.
1 Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. D. 441 ; Great Northern
Fishing Co. v. EdgeMll (1883), 11 Q. B. X>. 225.