Remedies

Remedies: Compensation in Tort

General Principles of Damages in Tort

  • Livingston v Rawyards Coal Co (1880) 5 App Cas 25, 39:- The principle is to provide a sum of money that places the injured party in the same position they would have been in if the wrong had not occurred.

    • "where an injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation."

General Principles of Damages in Contract

  • Robinson v Harmon (1848) 154 ER 363, 365:- The rule of common law is to place the party who sustains a loss due to a breach of contract in the same situation, with respect to damages, as if the contract had been performed.

    • "The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed."

Compensation Principle

  • The compensation principle operates differently in contract and tort:- Contract: Looks forward to the completed contract (bargain).

    • Tort: Looks backward to the pre-tort position.

  • Statutory damages, such as under the Competition and Consumer Act 2010 (Cth), may not necessarily follow either measure.

Attribution of Responsibility: Elements

  1. The plaintiff has a tortious cause of action against the defendant.

  2. The defendant’s tort has in fact caused the plaintiff’s loss.

  3. The plaintiff’s loss is not too remote.

  4. The plaintiff has not breached their duty to mitigate unnecessary loss.

Section 5A CLA

  • Section 5A Application of Part (1A Negligence):- (1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

Does the CLA Apply?

  • Section 3B Civil Liability Act 2002 (NSW): Civil liability excluded from the CLA (at least in part):- An intentional act done with intent to cause injury or death, or that is sexual assault or other sexual misconduct.

    • Injury from dust diseases.

    • Injury from smoking.

    • Injury from a motor vehicle accident.

    • Injury involving worker's compensation.

    • Note that for some exclusions, only parts of the Act are excluded.

Cause of Action

  • Examples: Assault, Battery, Conversion, Deceit, Detinue, False imprisonment, Negligence, Negligent misstatement, Nuisance, Trespass to goods, land.

Causation: Factual and Legal

  • Common Law (March v Stramare (1991) 171 CLR 506):- Factual causation: 'but for' test and common sense.

    • Legal causation: value judgments and policy considerations.

  • Civil Liability Act 2002 (NSW) Section 5D General principles:- (1) A determination that negligence caused particular harm comprises the following elements:- (a) that the negligence was a necessary condition of the occurrence of the harm (but for test)