Damages Flashcards
Watson, Laidlaw & Co v Pott Cassels & Williamson 1914
“The idea [of damages] is to restore the person who has sustained injury and loss to the condition in which he would have been had he not so sustained it”.
Houldsworth v Brand’s Trs 1877
“P… placed in the same position … as he WOULD HAVE BEEN IN had there been no breach of contract”
“They are bound to make good to the pursuer the damage or injury he has sustained by the wrongful retention from him of possession of the colliery; or, to put it differently, the pursuer is entitled to be placed in the same position, as nearly as possible as regards profits, as he would have been in had there been no breach of contract by the defenders.”
Two main ways of working out damages:
- The loss is the difference in value between the contractual and the actual performance
or. .. - The cost of curing the breach
Ruxley v Forsyth 1996
The built his pool to shallow ***Non-pecuniary loss = non-financial loss - emotional loss
He was awarded £2500 for ‘loss of amenity’. The pool cost £17800 to build and would have cost £21500 to fix - awarding this would have been unreasonable.
Diesen v Samson 1971
Established the principle of non-pecuniary loss
The wedding photographer didn’t turn up, so they didn’t have any photos of their wedding day.
Teacher v Calder (1898)
It is the pursuer’s position which is considered. It is not the defender, or party in breach, who must be treated as if the contract had been performed. So, if the defender makes a gain from the breach, that gain is not the correct basis for assessing damages.
AG v Blake 2001
EXCEPTIONAL CASE ***
A double-spy who got caught… he went to jail… he escaped… defected to Russia…. 1990’s published his memoir’s…. broke official secrets act…
There was no monetary loss to the Ministry of Defence
BUT he had gained money
–he was stripped of his profits
TEST:
- if normal remedies are inadequate
- if you have a legitimate interest in preventing the profit making activity
- appropriate circumstances of the case (eg. the subject matter involves confidential information.
Fielding v Newell 1987
Abortive or wasted expenditure
a buyer of a castle and a right to a feudal barony was entitled to recover abortive expenditure which had been incurred PRIOR to the conclusion of the contract.
Sometimes a damages claim is only made to cover waster expenditure incurred IN RELIANCE ON THE CONTRACT BEING PERFORMED
Wilky v Brown 2003
The principle is that a breach of contract must cause a damnum or loss to the pursuer to entitle the pursuer to damages.
The loss MUST BE SHOWN BY P – without any proof or arguments detailing loss, no award will be made. In this case, P didn’t make any arguments for nominal damages, so no nominal damages were awarded.
Webster v Crammond 1875
cf. Wilky v Brown 2003
“The contract and the breach of it are established. That leads of necessity to an award of damages. It is impossible to say that a contract can be broken even in respect of time without the party being entitled to claim damages - at the lowest, nominal damages.”
Watts v Morrow 1991
Where a surveyor’s report negligently fails to disclose defects in a property, the correct measure of damages is not the cost of repair, but the diminution in value of the property. Ps bought a house for GBP 177,500 in reliance upon a survey that stated that the house was sound, stable, and in good condition. After taking possession, Ps discovered substantial defects which cost them GBP 33,961 to put right. They brought an action claiming the cost of repairs. It was common ground that the true value of the house as it actually was at date of purchase was GBP 162,500. The judge awarded Ps the cost of carrying out the repairs.
Held, allowing the appeal, that the proper measure of damages was the diminution in value rather than the cost of repairs
Duke of Portland v Woods Trustees 1926
Coal mines - stipulation of contract not to leave the mines flooded - they left the mines flooded - how to quantify damages - £70000 to restore the mines - £1500 worth of coal in mine.
P wanted the sum to clear the mines, D wanted to pay the value of the coal.
They pretty much said it could be both, it was sent to a proof.
