Remedies

Question 1

What are the 5 available remedies?

Answer 1

1) injunction
2) Damages
3) Declaration from the court
4) Self-help the law provides a way of someone helping themselves (eg self defence)
5) Costs

Question 2

Injunction

Answer 2

A traditionally equitable remedy which the senior courts can now provide for (Senior Courts Act 2006 s 13)

Discretionary consideration of the outcome – you can consider the full range of facts : (injunction was provided)
- Bank of New Zealand v Greenwood
- Lawrence v Fen Tigers Ltd 🏟️

“The fact that a defendant’s business may have to shut down if an injunction is granted should, it seems to me, obviously be a relevant fact, and it is hard to see why relevance should not extend to the fact that a number of the defendant’s employees would lose their livelihood, although in many cases that may well not be sufficient to justify the refusal of an injunction. Equally, I do not see why the court should not be entitled to have regard to the fact that many other neighbours in addition to the claimant are badly affected by the nuisance as a factor in favour of granting an injunction.”

Question 3

What are the three types of damages

Answer 3

• Compensation damages
• Exemplary/punitive damages
• Nominal damages

It is NOT necessary to show that the respondent was the sole cause of the loss
- Smith v Fonterra

(Damages also function to vindicate a claimant’s rights)

Question 4

What are nominal damages?

Answer 4

• A token amount used to vindicate a claimant’s protected interest
  Often used where a claim is actionable per se and there is no harm (eg intentional torts which are actionable per se)
• May support an entitlement to costs

Question 5

What are compensatory damages?

Answer 5

• Are calculated by the sum of money required to put the claimant into the position that they would have been in if the wrong had not occurred. That is the position they were in before the tort occurred
• General Damages – are still compensatory but are for intangible harm, such as pain suffering and distress - ‘hurt and humiliation’

Question 6

What are exemplary damages?

Answer 6

• Are awarded to punish a defendant who engaged in outrageous wrongdoing
• May be possible to be awarded if there isn’t an intentional Act
  They are to condemn flagrant wrongdoing, where either the tort is intentional “or with subjective recklessness, which is the close moral equivalent of intention” – Couch v Attorney General (subjective recklessness: must know there is a risk and proceed in full awareness of the risk)
• Very RARE in exceptional circumstances
• NOT compensatory – normally both sorts of damages come together
• Not freestanding power of the court to punish – can only happen if the claim is successfully supported
• Punitive damages for defamation are distinctive – s 28 of the Defamation Act 1992