ABSTRACT
This kind of loss construction must be distinguished from actual noncompensatory damages. Exemplary, or punitive, damages are the exception to the general rule that damages are awarded to compensate for damage. Yet, from time to time, their role can be important in areas such as trespass where behaviour on the one hand and damage suffered on the other seem out of proportion.142 If a trader or builder deliberately and consistently flouts the law for his own benefit, is private law to remain impotent? No doubt with the extension of damage into the area of mental distress the need for recourse to punitive damages will become less pressing, but there remain areas where certain kinds of harm do not qualify as damage in the common law. In Constantine v Imperial Hotels,143 a West Indian cricketer was refused accommodation in one of the defendants’ hotels on the ground of his colour. He obtained only nominal damages even although the hotel was in breach of its duty of common innkeepers and that this breach had caused much humiliation and distress (not to mention invasion of a constitutional right). Such mental distress does not in itself appear to be damage for the purposes of the law of the common law of damages.
