Topic 2: Performance - TORTS remedies

Question 0

When would an injunction be appropriate for torts?

Answer 0

Where there is an ongoing torts, it is more appropriate to seek an injunction as damages will be too speculative such as a nuisance case.

Question 1

What are the two remedies that have a perfectionary remedial goal that can be used for torts?

Answer 1

1. Injunctions; and

2. Equitable damages

Question 2

Is there a difference between getting an injunction in tort and in contract?

Answer 2

No, it has the same requirements:

1. Breach of a legal right;
2. Legal remedies inadequate;
3. Balance favours imposition of an injunction.

Question 4

What cases are example of injunctions for tort cases?

Answer 4

1. Bendall v Mirvak; and

2. Brady v Damon

Question 5

What are the facts of Bendall v Mirvak?

Answer 5

• Mirvak (D) was constructing a building on land adjoining P’s land.
• They erected screens outside of building which invaded airspace above P’s property
• P brought action for injunction to restrain D from using screens.

Court held:

• It was a breach of legal rights, hard to measure CL damages because it’s invasion of airspace, it’s a rare commodity and the only discretionary factor would be hardship.
• Judge held damages were inappropriate and there were other construction techniques available to D, that would have been more expensive, but it’s not enough to get over hardship threshold.
• D could not choose the most economically viable method and commit a tort
• Injunction granted.

Question 6

How is it possible to get equitable damages for torts?

Answer 6

The wording under s62: “commission or continuance of any wrongful act” includes torts.

Question 7

What is a case example for equitable damages for torts?

Answer 7

Barbagallo v Catelan

Question 8

What are the facts of Barbagallo v Catelan?

Answer 8

• D begun excavation work on their farm which was adjoined to P’s farm.
• After undertaking a certain amount, it became clear if continued it would result in erosion of P’s land.
• P brought application for injunction.
• By the time case heard, D had sold their land, so impossible to comply with injunction.
• Trial judge awarded equitable damages, D argued can’t award for torts until SOME damage is caused. Damage to P’s land hadn’t been caused yet.

Courts held:

• At common law, yes damage was required.
• But the point of equitable damages was substitution for injunction which was for apprehended breach, so it follows can get equitable damages for apprehended breach.
• party injured in s62 was broad enough to include anticipated breach.

Question 9

What are the facts of Brady v Damon?

Answer 9

• Application for a mandatory interlocutory injunction
• D was doing excavation work on their land which adjoined P’s land.
• It became apparent there was risk to P’s land which had a motel on it owned by P’s.
• Evidence showed IF D continued, there was a risk of motel collapsing.
• P sought injunction asking for D to do something to restore support of P’s land.

Test slightly different than injunction for breach of negative stipulation:

1. STRONG PROBABILITY that damage would accrue to P;
2. Damages inadequate
3. Balance of convenience favours imposition of injunction.

• The P’s produced an engineers report, showing P’s land would collapse with no supporting structure, so there was a strong probability of damage.
• Damages can’t be calculated because they were running a business, loss of profits too hard to calculate
• Engineers report said D could have easily rectified problem by building wall, so inconvenience to D not much.
• Mandatory Injunction granted.