Damages and Equitable Remedies Flashcards
Who said “it has been truly said that the assessment of damages in contract and tort is a pragmatic subject…which does not lend itself to hard and fast rules”?
Deane J in Commonwealth v Amann (1991) HCA.
Wrongful termination - wasted expenditure - chance of renewal.
Exemplary or punitive damages are not recoverable as part of a damages award for breach of contract.
Butler v Fairclough (1917) per Griffith CJ.
“A breach of contract may be innocent, even accidental or unconscious … Or it may be wilful…malicious and committed with the express intention of injuring the other party. But the measure of damages is not affected by any such considerations…”
The general rule is damages will be assessed at the date of breach, but is flexible if necessary to provide adequate compensation.
Johnson v Perez (1988) HCA
Injured plaintiff - sued solictors - when is claim assessed?
Loss of a chance damages are awarded in contract.
Chaplin v Hicks [1911] 2 KB 786
Beauty contest - inadequte notice of interview - lost chance.
Non-economic loss is recoverable if there is physical inconvenience.
Hobbs v London & South Western Railway Co (1875)
Train stopped early - walked 4-5 miles home.
Non-economic loss is recoverable for physical injury.
Godley v Perry [1960] 1 WLR 9
Toy catapult - malfunctioned - injured plaintiff’s eye.
Generally damages are not recoverable for disappointment and injured feelings.
Addis v Gramophone Co Ltd [1909] UKHOL
Manager in Calcutta - replaced - home to England in humiliation.
Non-economic loss is recoverable for disappointment if the contract was to provide enjoyment and freedom from disappointment.
Baltic Shipping Co v Dillon (1993) HCA
Cruise ship - holiday - sank due to negligence.
Rectification costs are the normal measure of costs.
Bellgrove v Eldridge (1954) HCA
House - defective foundations - instablity - demolish and rebuild.
Rectification costs will not be awarded if costs are unreasonable.
Ruxley Electronics v Forsyth [1995]
Pool - 9 inches too shallow - cost of demolishing excessive.
Damages are available for loss of the use of money (i.e. additional borrowing costs, or costs of lost investment opportunity).
Hungerfords v Walker (1989) HCA
Accountants negligent - overpayed tax - loss of opportunity.
The High Court has observed, a proper understanding of the doctrine requires ‘more than a brief backward glance’.
Andrews v ANZ [2012] HCA
Bank fees case - secondary obligation (no breach) - penalty.
A liquidated damages clause will be a penalty if it is extravagant and unconscionable compared with the greatest loss that could conceivably be proved to have followed from the breach.
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] UKHOL
Resale price management - now illegal - retailer in breach.
Why is it beneficial to draft breach of contract claims as absolute breaches, rather than failure to take reasonable care?
Because it can circumvent:
- the potential defences of contributory negligence (Part V Wrongs Act Vic); and
- proportionate liability (a failure to take reasonable care).
Damages will be an inadequate remedy, allowing specific performance, if there is no substitute for performance available on the market.
Dougan v Ley (1946) HCA
Taxi sale - limited number - each unique - damages inadequate.
Damages will be an inadequate remedy, allowing specific performance, if damages are unavailable.
JC Williamson Ltd v Mulholland (1931) HCA
Theatre lolly store - unenforcable licence - damages unavailable.
Damages will be inadequate, allowing specific performance, where there is an exclusivity arrangement.
Curro v Beyond Productions Pty Ltd (1993) NSWSC
TV presenter - moved to Ch 9 - exclusivity not compensible.
