5. Remedies

Articles

  • “Black Widow”

Poisoned and killed husband for his life insurance.


Compensatory Damages

  • Purpose = compensation.

  • “Once and for all payment”.

  • Future loss must be calculated.

  • Difficulty of assessment no bar to an award of compensation: Chaplin v Hicks [1860] (UK) (CA).


Can be hard to calculate. Sometimes easy like value of a car or smth. Other times can be hard such as mental or physical damage.

UK example: Women was prevented from getting into finals of Beauty competition, sued. Had to decide whether she would have gone through, then discount the value she missed by not being allowed through.

CHAPLIN v HICKS [1860] (UK) (CA)

  • Defendant in breach of contract prevented Plaintiff from taking part in the final stage of a beauty contest.

  • In the final 12 of the final 50 (6,000 original entrants) would be rewarded with places in a chorus line.

  • Held: Plaintiff awarded damages for loss of a chance of winning the competition – assessed at 25%.

  • Approached on the basis of a statistical chance of winning rather than attributes.


QUANTUM OF DAMAGE

  • The aim: to put the Plaintiff in to the position they would have been in if the tort had never been committed in the first place.

  • Land and buildings:

    • Two methods:

      • Value-based assessment = undamaged value – damaged value;

      • Restoration-based assessment.

    • Court chooses measure, depending on use and intention:

      • Continue existing use – restoration (unless costs too difficult to estimate);

      • Sell for capital gain – value-based.


Chattels

  • Chattels:

    • Written off: sum that represents the value of the chattel to someone in P’s position:

      • “Off the shelf” = sale price of undamaged chattel + interest (+ expenses?);

      • Custom made = capitalised value as a profit-earning machine or cost of hiring substitute or cost of construction of substitute.


Betterment

  • Betterment – replaced/repaired asset worth more/works better than the damaged one:

    • British Westinghouse Electric and Manufacturing Co v Underground Electric Rail Co [1912] (UK) (CA).

  • Likely to allow for betterment, with allowance for disadvantage to Plaintiff from involuntary spending.

  • Defendant must prove betterment.


Economic Loss

  • Economic loss consequent on damage to property is recoverable.

  • Loss of a chance/right to compete:

    • Gartside v Sheffield Young and Ellis: Lost chance to benefit under a Will.

  • Reasonable chance v pure speculation:

    • Powerbeat Canada Ltd v Powerbeat International Ltd [2001] (HC): P demonstrate on balance of probabilities that D’s conduct led to loss of a “substantial prospect” of acquiring some commercial benefit.

    • Quantification:

  • Apportionment approach (Benton v Miller & Poulgrain [2004] (CA).


Gartside v Sheffield Young and Ellis

  • Lawyer delayed in attending an elderly and ailing client to complete a will.

  • Client dies without changing a Will.

  • Intended beneficiary able to sue the lawyer. (They missed out because law firm was negligent and took too long to meet with client.)


BENTON v MILLER & POULGRAIN [2004] (CA)

  • Couple owned separate interests in property.

  • Property transactions took place without the effect of the Matrimonial Property Act being explained.

  • Lawyer sued.

  • Issue: What would have happened had the clients been properly advised? (they subsequently separated).

  • Probabilities led to a proportionate recovery of loss.


Duty to Mitigate Loss

  • P (plaintiff) has a duty to take steps to lessen the loss suffered.

  • Examples:

    • D sells P defective flowers;

    • P wrongfully dismissed 2 months into a 2 year contract.

  • P need only take reasonable steps.

  • Where steps to mitigate are reasonable, mitigation costs will be recoverable from D: Holden v Bostock [1902] (UK).

  • Defendant offers to assist.

  • To reduce damages payable, D must prove:

    • P could have mitigated loss; or

    • Steps P took to mitigate were inadequate.


HOLDEN v BOSTOCK [1902] (UK)

  • Defendant supplied sugars to Plaintiff brewers which contained poisonous material.

  • Large quantities of beer previously brewed had to be destroyed.

  • Cost of advertising to minimise any possible loss of business following destruction of the stock reasonable. (Mitigating loss, therefore cost can be recovered).


Other Types of Damages

Exemplary Damages

  • Exemplary (punitive) damages:

    • Special damages for someone who did something so bad that it needs punished.

      • Punish or deter;

      • D acted with total contempt or contumelious disregard for P’s interests;

      • Example: Cook v Evatt (No. 2) [1992]

      • Example: The robbery of the RSA where the guy who was supposed to be supervised by parole officer killed and injured people.

Not common in NZ because the pay-out is not usually very big.

Nominal and General Damages

  • Nominal damages:

    • Indicate D has committed a civil wrong.

  • General damages:

    • Pain, suffering, indignity, humiliation and mental distress.


Other types of Remedies

  • Injunctions:

    • Prohibitory;

    • Mandatory.

  • Interlocutory/Interim Injunctions:

    • Ex parte/without notice.

  • Mareva Injunctions/Freezing Order:

    • Prevent D from disposing of asset/removing from NZ.

  • Anton Piller Order/Preservation of Property Order:

    • Prevent destruction/concealment/alteration of evidence;

    • Allows inspection, copying or removal.