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At
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
, damages are a remedy in the form of a
monetary Image:National-Debt-Gillray.jpeg, In a 1786 James Gillray caricature, the plentiful money bags handed to King George III are contrasted with the beggar whose legs and arms were amputated, in the left corner, 174x174px Money is any item or verif ...

monetary
award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury;
pure economic loss Economic loss is a technical terminology, term of art which refers to financial loss and damage suffered by a person which is seen only on a balance sheet and not as physical injury to person or property. There is a fundamental distinction between ...
is rarely recognised for the award of damages. Compensatory damages are further categorized into special damages, which are economic losses such as loss of earnings,
property damage Property damage (cf. The abbreviation ''cf.'' (short for the la, confer/conferatur, both meaning 'compare') is used in writing to refer the reader to other material to make a comparison with the topic being discussed. Style guides recommend t ...
and medical expenses, and general damages, which are non-economic damages such as pain and suffering and emotional distress. Rather than being compensatory, at
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
damages may instead be nominal, contemptuous or exemplary.


History

Among the
Saxons The Saxons ( la, Saxones, german: Sachsen, ang, Seaxan, osx, Sahson, nds, Sassen, nl, Saksen) were a group of early Germanic Germanic may refer to: * Germanic peoples, an ethno-linguistic group identified by their use of the Germanic langua ...
, a monetary value called a ''
weregild Weregild (also spelled wergild, wergeld (in archaic/historical usage of English), weregeld, etc.), also known as man price (blood money Blood money may refer to: * Blood money (restitution), money paid to the family of a murder victim Films ...
'' was assigned to every human being and every piece of property in the
Salic Code The Salic law ( or ; la, Lex salica), or the was the ancient Salian Frankish civil law code compiled around AD 500 by the first Frankish King, Clovis I, Clovis. The written text is in Latin and contains some of the earliest known instances of O ...
. If property was stolen or someone was injured or killed, the guilty person had to pay the weregild as restitution to the victim's family or to the owner of the property.


Proof of damages


Proximate cause

Recovery of damages by a plaintiff in lawsuit is subject to the legal principle that damages must be proximately caused by the wrongful conduct of the defendant. This is known as the principle of proximate cause. This principle governs the recovery of all compensatory damages, whether the underlying claim is based on contract, tort, or both. Damages are likely to be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by their actions, there may be no liability. This rule does not usually apply to intentional torts (for example,
tort of deceit The tort of deceit is a type of legal injury that occurs when a person intentionally and knowingly deceives another person into an action that damages them. Specifically, deceit requires that the tortfeasor * makes a factual representation, * know ...
), and also has stunted applicability to the quantum in negligence where the maxim 'Intended consequences are never too remote]' applies: 'never' is inaccurate here but resorts to unforeseeable direct and natural consequences of an act.


Expert testimony

It may be useful for the lawyers, the plaintiff and/or the defendant to employ forensic accounting, forensic accountants or someone trained in the relevant field of economics to give evidence on the value of the loss. In this case, they may be called upon to give opinion evidence as an
expert witness An expert witness, particularly in common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written ...
.


Compensatory damages

Compensatory damages are paid to compensate the claimant for loss, injury, or harm suffered by the claimant as a result of another's breach of duty that caused the loss. For example, compensatory damages may be awarded as the result of a negligence claim under tort law.
Expectation damages Expectation damages are damages recoverable from a breach of contract, breach of contract by the non-breaching party. An award of expectation damages protects the injured party's interest in realising the value of the expectancy that was created b ...
are used in contract law to put an injured party in the position it would have occupied but for the breach. Compensatory damages can be classified as special damages and general damages.


Quantum (measure) of damages

Liability for payment of an award of damages is established when the claimant proves, on the balance of probabilities, that a defendant's wrongful act caused a tangible, harm, loss or injury to the plaintiff. Once that threshold is met, the plaintiff is entitled to some amount of recovery for that loss or injury. No recovery is not an option. The court must then assess the amount of compensation attributable to the harmful acts of the defendant.


Special damages

''Special damages'' compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs, and so on. They are seen in both personal and commercial actions. Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate damages) and consequential or economic losses resulting from lost profits in a business. Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. This can often result in a different measure of damages. In cases where it is possible to frame a claim in either contract or tort, it is necessary to be aware of what gives the best outcome. If the transaction was a "good bargain", contract generally gives a better result for the claimant. As an example, Neal agrees to sell Mary an antique Rolex for £100. In fact the watch is a fake and worth only £50. If it had been a genuine antique Rolex, it would have been worth £500. Neal is in breach of contract and could be sued. In contract, Mary is entitled to an item worth £500, but she has only one worth £50. Her damages are £450. Neal also induced Mary to enter into the contract through a misrepresentation (a tort). If Mary sues in tort, she is entitled to damages that put herself back to the same financial position place she would have been in had the misrepresentation not been made. She would clearly not have entered into the contract knowing the watch was fake, and is entitled to her £100 back. Thus her damages in tort are £100. (However, she would have to return the watch, or else her damages would be £50.) If the transaction were a "bad bargain", tort gives a better result for the claimant. If in the above example Mary had overpaid, paying £750 for the watch, her damages in contract would still be £450 (giving her the item she contracted to buy), however in tort damages are £700. This is because damages in tort put her in the position she would have been in had the tort not taken place, and are calculated as her money back (£750) less the value of what she actually got (£50).


Incidental and consequential losses

Special damages are sometimes divided into
incidental damages Incidental damages refers to the type of legal damages At common law, damages are a legal remedy, remedy in the form of a money, monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must s ...
, and
consequential damages Consequential damages, otherwise known as special damages, are damages At common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunal ...
. Incidental losses include the costs needed to remedy problems and put things right. The largest element is likely to be the reinstatement of property damage. Take for example a factory which was burnt down by the negligence of a contractor. The claimant would be entitled to the direct costs required to rebuild the factory and replace the damaged machinery. The claimant may also be entitled to any consequential losses. These may include the lost profits that the claimant could have been expected to make in the period whilst the factory was closed and rebuilt.


Breach of contract duty - (ex contract)

On a breach of contract by a defendant, a court generally awards the sum that would restore the injured party to the economic position they expected from performance of the promise or promises (known as an "
expectation measure Expectation or Expectations may refer to: Science * Expectation (epistemic) * Expected value, in mathematical probability theory * Expectation value (quantum mechanics) * Expectation–maximization algorithm, in statistics Music * Expectation (alb ...
" or "benefit-of-the-bargain" measure of damages). This rule, however, has attracted increasing scrutiny from Australian courts and legal commentators... A judge arrives compensatory number by considering both the type of contract, and the loss incurred. When it is either not possible or not desirable to award the victim in that way, a court may award money damages designed to restore the injured party to the economic position s/he occupied at the time the contract was entered (known as the " reliance measure").. or designed to prevent the breaching party from being unjustly enriched ("restitution") (see below). Parties may contract for
liquidated damages Liquidated damages, also referred to as "liquidated and ascertained damages" (LADs), are damages whose amount the parties designate during the formation of a contract A contract is a legally binding agreement that defines and governs the righ ...
to be paid upon a breach of the contract by one of the parties. Under common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach (in this case it is termed
penal damages Penal damages are liquidated damages Liquidated damages, also referred to as "liquidated and ascertained damages" (LADs), are damages whose amount the parties designate during the formation of a contract A contract is a legally binding agr ...
).. The clause will be enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of economic loss. Courts have ruled as excessive and invalidated damages which the parties contracted as liquidated, but which the court nonetheless found to be penal. To determine whether a clause is a liquidated damages clause or a penalty clause, it is necessary to consider: i) Whether the clause is 'extravagant, out of all proportion, exorbitant or unconscionable'. ii) Whether there is a single sum stipulated for a number of different breaches, or individual sums for each breach. iii) Whether a genuine pre-estimate of damage is ascertainable


Breach of tort duty - (ex delicto)

Damages in tort are generally awarded to place the claimant in the position that would have been taken had the tort not taken place. Damages in
tort A tort, in common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dict ...

tort
are quantified under two headings: general damages and special damages. In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained (see below general damages for more details). In non-personal injury claims, for instance, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss. The loss must be reasonably foreseeable and not too remote. Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss.


General damages

''General damages'' are monetary compensation for the non-monetary aspects of the specific harm suffered. These damages are sometimes termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship,
loss of consortium Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. In this context, the word ''consortium'' means "(the right of) association and fel ...
, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, hedonic damages or loss of enjoyment of life, etc. This is not easily quantifiable, and depends on the individual circumstances of the claimant. Judges in the United Kingdom base the award on damages awarded in similar previous cases. General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation.


Statutory damages

Statutory damages Statutory damages are a damage Damage is any change Change or Changing may refer to: Alteration * Impermanence Impermanence, also known as the philosophical problem This is a list of the major unsolved problems in philosophy P ...
are an amount stipulated within the statute rather than calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine the value of the harm to the victim. Mere violation of the law can entitle the victim to a statutory award, even if no actual injury occurred. These are different from nominal damages, in which no written sum is specified.


Nominal damages

Nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the
National Football League The National Football League (NFL) is a professional American football American football, referred to simply as football in the United States and Canada and also known as gridiron, is a team sport A team sport includes any s ...
(NFL) in the 1986 antitrust suit prosecuted by the
United States Football League The United States Football League (USFL) was an American football American football, referred to simply as football in the United States and Canada and also known as gridiron, is a team sport played by two teams of eleven players on a r ...
. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the
jury A jury is a sworn body of people (the jurors) convened to render an impartial Impartiality (also called evenhandedness or fair-mindedness) is a principle of justice holding that decisions should be based on objectivity (philosophy), objective ...

jury
awarded to
James Whistler James Abbott McNeill Whistler (; July 11, 1834July 17, 1903) was an American painter active during the American Gilded Age and based primarily in the United Kingdom. He eschewed sentimentality and moral allusion in painting and was a leading pr ...

James Whistler
in his libel suit against
John Ruskin John Ruskin (8 February 1819 20 January 1900) was an English writer, philosopher A philosopher is someone who practices philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those about Metaphys ...

John Ruskin
. In the English jurisdiction, nominal damages are generally fixed at £5. Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech. Until 2021, in the United States, there was a circuit split as to whether nominal damages may be used if a constitutional violation had occurred but has since been rendered
moot Moot may refer to: * Mootness, in American law: a point where further proceedings have lost practical significance, whereas in British law, mootness means that the issue remains debatable * Moot court, an activity in many law schools where partici ...
. The Supreme Court decided 8–1 in the 2021 case '' Uzuegbunam v. Preczewski'' that nominal damages are appropriate means to redress violated rights otherwise now rendered moot.


Contemptuous damages

Contemptuous damages are a form of damage award available in some jurisdictions. They are similar to nominal damages awards, as they are given when the plaintiff's suit is trivial, used only to settle a point of honour or law. Awards are usually of the smallest amount, usually 1 cent or similar. The key distinction is that in jurisdictions that follow the loser-pays for attorney fees, the claimant in a contemptuous damages case may be required to pay his or her own attorney fees. Traditionally, the court awarded the smallest coin in the Realm, which in England was one farthing, 1/960 of a pound before decimalisation in the 1970s.
Court costs Court costs (also called law costs in English procedure) are the costs of handling a case, which, depending on legal rules, may or may not include the costs of the various parties in a lawsuit A lawsuit is a proceeding by a party or partie ...
are not awarded.


Punitive damages (non-compensatory)

Generally, punitive damages, which are also termed ''exemplary damages'' in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously insidious and are over and above the amount of compensatory damages, such as in the event of malice or
intent Intentions are mental states A mental state, or a mental property, is a state of mind of a person. Mental states comprise a diverse class including perception, pain experience, belief, desire, intention, emotion, and memory. There is controversy c ...
. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the
due process of law Due process is the legal requirement that the State (polity), state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a ...
clauses of the
Fifth Fifth is the Ordinal number (linguistics), ordinal form of the number 5, five. Fifth or The Fifth may refer to: * Fifth Amendment to the United States Constitution, as in the expression "pleading the Fifth" * Fifth column, a political term * Fifth ...
and Fourteenth Amendments to the
United States Constitution The Constitution of the United States is the supreme law A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation An organization, or orga ...

United States Constitution
. In England and
Wales Wales ( cy, Cymru ) is a Countries of the United Kingdom, country that is part of the United Kingdom. It is bordered by England to the Wales–England border, east, the Irish Sea to the north and west, and the Bristol Channel to the south. It ...

Wales
, exemplary damages are limited to the circumstances set out by
Lord Devlin Patrick Arthur Devlin, Baron Devlin, PC, FBAFBA may refer to: * Federation of British Artists * Federal Bar Association * Fellow of the British Academy * Filsports Basketball Association * First Baptist Academy (Houston, Texas), United States ...
in the leading case of '' Rookes v. Barnard''. They are: #Oppressive, arbitrary or unconstitutional actions by the servants of government. #Where the defendant's conduct was 'calculated' to make a profit for himself. #Where a statute expressly authorises the same.
Rookes v Barnard ''Rookes v Barnard''
964 Year 964 ( CMLXIV) was a leap year starting on FridayA leap year starting on Friday is any year with 366 days (i.e. it includes 29 February) that begins on Friday 1 January and ends on Saturday 31 December. Its dominical letters hence are CB. ...
Case citation#England and Wales, AC 1129 is a UK labour law and English tort law case and the leading case in English law on punitive damages and was a turning point in judicial activism against trade unions. The case ...
has been much criticised and has not been followed in Canada or Australia or by the
Privy Council A privy council is a body that advises the head of state A head of state (or chief of state) is the public persona A persona (plural personae or personas), depending on the context, can refer to either the public image of one's per ...
. Punitive damages awarded in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public.


Aggravated damages

Some jurisdictions recognize a form of damages, called, aggravated damages, that are similar to punitive or exemplary damages. Aggravated damages are not often awarded; they apply where the injury has been aggravated by the wrongdoer's behaviour, for example, their cruelty.


Restitutionary or disgorgement damages

In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in
restitution The law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by ...

restitution
. Doyle and Wright define restitutionary damages as being a monetary remedy that is measured according to the defendant's gain rather than the plaintiff's loss. The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly
intellectual property Intellectual property (IP) is a category of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner o ...
rights and breach of fiduciary relationship. In England and Wales the
House of Lords The House of Lords, formally The Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled, is the of the . Membership is by , or . Like the , it meets in the . ar ...

House of Lords
case of ''Attorney-General v. Blake'' opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy,
George Blake George Blake ( Behar; 11 November 1922 – 26 December 2020) was a Espionage, spy with Britain's Secret Intelligence Service (MI6) and worked as a double agent for the Soviet Union. He became a communist and decided to work for the Minis ...

George Blake
, for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear. The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.


Legal costs

In addition to damages, the successful party is entitled to be awarded their reasonable
legal costs Court costs (also called law costs in English procedure) are the costs of handling a case, which, depending on legal rules, may or may not include the costs of the various parties in a lawsuit A lawsuit is a proceeding by a party or parti ...
that they spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its
attorneys' fees Attorney's fee is a chiefly United States The United States of America (USA), commonly known as the United States (U.S. or US), or America, is a country Contiguous United States, primarily located in North America. It consists of 50 U.S. sta ...
or for hardships undergone during trial unless the parties agreed in a contract that attorney's fees should be covered or a specific statute or law permits recovery of legal fees, such as
discrimination Discrimination is the act of making unjustified distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong. People may be discriminated on the basis of Racial discrimination, r ...
.


Damages in personal injury cases

The quantification of personal injury is not an exact science. In English law solicitors like to call personal injury claims as "general damages" for pain and suffering and loss of amenity (PSLA). Solicitors quantify personal injury claims by reference to previous awards made by the courts which are "similar" to the case in hand. The guidance solicitors will take into account to help quantify general damages are as hereunder:


The age of the client

The age of the client is important especially when dealing with fatal accident claims or permanent injuries. The younger the injured victim with a permanent injury the longer that person has to live with the PSLA. As a consequence, the greater the compensation payment. In fatal accident claims, generally the younger deceased, the greater the dependency claim by the partner and children.


The nature and extent of the injuries sustained

Solicitors will consider "like for like" injuries with the case in hand and similar cases decided by the courts previously. These cases are known as precedents. Generally speaking decisions from the higher courts will bind the lower courts. Therefore, judgments from the House of Lords and the Court of Appeal have greater authority than the lower courts such as the High Court and the County Court. A compensation award can only be right or wrong with reference to that specific judgment. Solicitors must be careful when looking at older cases when quantifying a claim to ensure that the award is brought up to date and to take into account the court of appeal case i
Heil v Rankin
ref>
Generally speaking the greater the injury the greater the damages awarded.


Personal attributes and fortitude of the client

This heading is inextricably linked with the other points above. Where two clients are of the same age, experience and suffer the same injury, it does not necessarily mean that they will be affected the same. We are all different. Some people will recover more quickly than others. The courts will assess each claim on its own particular facts and therefore if one claimant recovers more quickly than another, the damages will be reflected accordingly. It is important to note here that "psychological injuries" may also follow from an accident which may increase the quantum of damages. When a personal injury claim is settled either in court or out of court, the most common way the compensation payment is made is by a lump sum award in full and final settlement of the claim. Once accepted there can be no further award for compensation at a later time unless the claim is settled by provisional damages often found in industrial injury claims such as asbestos related injuries.


See also

*
Arbitration award An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal 300px, The London Court of International Arbitration An arbitral tribunal or arbitration tribunal, also arbitration commission, arbitration commit ...
*
Bad faith Bad faith (Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share" or "to be in rela ...
*
Fine (penalty) A fine or mulct is a penalty of money that a court of law A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a state State may ...
* Measure of Damages (under English law) *
Non-economic damages caps Non-economic damages caps are tort reform Tort reform refers to proposed changes in the civil justice system that aim to reduce the ability of victims to bring tort A tort, in common law In law, common law (also known as judicial pr ...
*
Restorative justice Restorative justice is an approach to justice in which one of the responses to a crime is to organize a meeting between the victim and the offender, sometimes with representatives of the wider community. The goal is for them to share their expe ...
*
Subrogation Subrogation is the assumption by a third party (such as a second creditor or an insurance company) of another party's legal right to collect a debt or damages. It is a legal doctrine whereby one person is entitled to enforce the subsisting or reviv ...
*
Restitution The law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by ...

Restitution
*
Reparations (transitional justice) Reparations are broadly understood as compensation given for an abuse or injury. The colloquial meaning of reparations has changed substantively over the last century. In the early 1900s, reparations were interstate exchanges (see war reparations ...
*
Legal remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law A court is any person or institution, often as a government A government is the system or group of people governing ...
*
Reparation (legal) In jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to fo ...
*
Reparations Reparation(s) may refer to: *Reparation (legal), the legal philosophy *Reparations (transitional justice), measures taken by the state to redress gross and systematic violations of human rights law or humanitarian law *Reparations for slavery, prop ...
*
War reparations War reparations are compensation payments made after a war War is an intense armed conflict between states, government A government is the system or group of people governing an organized community, generally a State (polity), ...
*
Reparations for slavery Reparations for slavery is the application of the concept of reparations to victims of slavery and/or their descendants. There are concepts for Reparation (legal), reparations in legal philosophy and Reparations (transitional justice), reparations ...


Notes


Further reading

*


External links

* {{Authority control Judicial remedies fi:Vahingonkorvaus