Aggregation and Divisibility of Damage (2009) (Tort and Insurance Law #26)

By: Ken Oliphant and Ewa Bagin´ska

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Synopsis: Whether the harm for which compensation is sought in an action in tort is regarded as a single indivisible loss or a plurality of losses can have a number of important ramifications. If there are several losses, it may be that more than one of the claimant’s interests is affected and that only some of his losses are considered to be recoverable damage. Whether or not consequential loss is regarded as an independent harm, to be addressed separately, or as part of the whole damage also bears upon this question of recoverability, as well as upon the application of statutes of limitation of action. Where there exist liability caps and minimum damage thresholds, the question may arise whether these apply once only, to the whole of the claim, or to each of several different c- ponents of the overall claim. A plurality of losses may also be reflected in the application of the laws of contributory negligence. These problems relating to the divisibility of damage may be particularly pressing in cases where there are multiple claimants or multiple defendants. If two or more claimants have rights over the same damaged property (e. g. as joint owners or as owner and licensee), whether they are regarded as having suffered the same loss or independent losses may have implications for the claims they can bring.