CL Remedies: Damages

Question 1

What?

Answer 1

WHAT: In common law, damages refer to monetary awards and serve as a final resolution for conflicts. Various interests are considered in determining damages, including expectation (compensating for what the injured party expected to gain), restitution (restoring the injured party to their original position), and retribution (punishing the wrongdoer).

Question 2

LIMITS ON THE AWARD OF DAMAGES

Answer 2

• Amount must be fair to both parties
• Onus of proof on P for damages  must show on BOP that D’s wrong was cause of harm suffered (causation)
   Limiting factors to this:
  o Uncertainty: reasonable degree of certainty the amount of damages
  o Remoteness: Court may still refuse if too remote – D is protected against undue extent of liability by principle of foreseeability
  o Mitigation: P may not recover damages that could have been avoided

Question 3

Types of Damages?

Answer 3

• Expectation Interest (contracts): Measured: in the amount designed to place P in position they would have been in had the contract been performed.
• Reliance Damages (contracts/torts): Measured: by the amount that will put P in position she would have been in had wrong not been done.
• Restitution: (unjust enrichment): Measured not by what P lost, but by full amount of benefit obtained by D as a result of wrong. Why Based on corrective justice: person shouldn’t profit from his own wrong doing
• Retribution: Aim: damages to punish D or deter certain conduct. It has nothing to do with compensating P.

Question 4

Remoteness (Legal causation)

Answer 4

TEST: the test for whether a loss is too remote is one of “reasonable contemplation” – the defendant will be responsible for loss when that loss could be said to be within his reasonable contemplation at the time of entering into the contract Hadley v Baxendale
TEST REFINED: According to H Parsons, reasonable contemplation = must be able to contemplate as a serious possibility the TYPE of consequence, not the specific consequence that ensured upon breach.
Further, the Court in Kinzle v Stringer affirmed the H Parsons test for tort and contract, stating that “reasonable foreseeability” is the standard.
* For contracts, it’s whether that type of breach comes within what was anticipated at time of formation.
* For tort, it’s immediately before the tortious act.
* The loss of damages from the direct cause of the issue is reasonably foreseeable, but damages that flow from a secondary bargain should not be reasonably foreseeable. Kinzle v Stringer