Damages & Equitable Remedies

Question 1

What are the general types of remedies available?

Answer 1

Remedies can be divided into:

remedies in common law

remedies in equity

remedies under legislation (superior over others)

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Equitable remedies can only be used where common law remedies (damages) are not sufficient to solve the issue - Flint v Brandon (1803) - “if damages (money) can solve the problem, it will solve the problem”

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Quasi-contractual remedies exist outside the contractual sphere

Where courts do not find a contract by fact but there should be a remedy available they can create a remedy

Question 2

What are damages and how are they applied?

Use case law in support of your answer

Answer 2

Damages are compensatory in contract law nature, which means:

they put parties in the position they would have been in, had there been no breach - Robinson v Harman (1848) - Robinson leased property from Harman. Harman represented himself as the owner of the property. In fact he was only beneficiary under a trust which owned the property and he was not entitled to let out the property to someone else. Robinson was unable to take posession of the property and claimed for compensation. The court could not apply specific performance as Mr. Harman was not the owner of the property but all of the trustees. The court tried to assess how much it would cost Robinson to acquire another property. It was more expensive so the court decided that Robinson could recover damages for the difference between what he would have paid and ended up paying for the property. In addition he could recover the loss of income/profits.

Courts assess (evaluate) the proximate amount of the damage - Pennant Hills Restaurants v Barrell Insurance (1981) - Pennant Hills Restaurants needed to be insured for liability in case of injury of their workers and Barrell Insurances should have arranged this insurance but failed to do so Hence, the liability fell on Pennant Hills. The court had to estimate the losses (e.g. how high is the loss of profit or damage caused by the worker being absent) to be compensated.