Compensation Flashcards
(28 cards)
What is the academic definition of a remedy?
‘… the relief that a person can seek from a court’ (Burrows, 2019, p3)
‘…the rights immediately arising from certain judicial commands and statements which aim to redress a pre-suit grievance’
Why are remedies important?
- remedies are the vital element in shaping, moderating and at times extending the substantive rules under which we live
- must always remember that legal advice is, and simply advice as to the re,needy likely to be available (or unavailable) to the client
What are the types of remedies?
-monetary (pecuniary)
- non-monetary (non-pecuniary)
(Damages, account of profits
-specific performance, injunction)
-final and temporary remedies
(Damages, account of profits, specific performance, final injunction
Interim injunction, freezing order, search order)
What are legal remedies?
Legal remedies are those that originated historically from the common law courts
- legal remedies are said to be available ‘as of right’.
What are equitable remedies?
Equitable remedies are those that originated historically from the courts of equity.
-equitable remedies are said to be subject to the discretion of the court, and to certain ‘bars to equitable relief’
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 (HL) 848-849
‘Every failure to perform a primary obligation is a breach of contract. The secondary obligation on the part of the contract breaker to which its gives rise by implication of the common law is to pay monetary compensation to the to the other party for the loss sustained by him in consequence of the breach.’- Lord Diplock
What are the aims and functions of remedies?
- compensation
- punishment
- restitution
- compelling performance of positive obligation
- preventing breach of obligation
- compelling undoing of a wrong
- declaring rights
What is compensation?
- Compensation refers to an award of a sum of money which is equivalent to the claimant’s loss
- the primary remedy for achieving compensation in both contract and tort is damages
What is the usual aim of compensatory damages for tort?
The usual aim of compensatory damages for a tort is to put the claimant into as good a position as they would have been in had the tort not been committed
What is usual aim of compensatory damages for a breach of contract?
- The usual aim of compensatory damages for a breach of contract is to put the claimant into as good a positron as they would have been in had the contract been performed
Robinson v Hartman (1848) 154 ER 368) at p.365
- read case
McRae v Commonwealth Disposals commission [1951] HCA 79
- read case
Anglia Television v Read [1972] 1 QB 60
- Read case
C&P Haulage v Middleton [1983] 1 WLR 1641
- read case
C has paid £1,000 for goods which would have been worth £1,200 if in accordance with the contract specification. However, they are faulty and only worth £900. What could C claim based on:
The expectation interest?—>
The reliance interest?—>
What is expenditure?
The expenditure which is sought to be recovered is incurred in expectation that the contract will be performed. It therefore appears to be rational to have regard to the postponement that the Claimant would have been in had the contract been performed
Omsk Maritime Ltd v Mamola Challenger Shipping Co (The Mamola Challenger) [2010] EWHC 2026 (Comm) at para 44.
- read case
Does ‘compensation’ mean something different depending on whether the obligation breach arises under contract or tort?
Why, for instance, in a breach of contract case, is it not sufficient for the claimant to be into the position they would have been in had the contract not been made?
What are the limiting general principle in remoteness in tort
- Remoteness
- Mitigation
- Contributory negligence
What is the general definition remoteness?
“If any system of compensation imposed liability for all the consequences of a given act it would be safest to stay in bed in the morning and avoid the risk of being found liable for anything’
- As a general rule, a claimant will not be able to recover damages for a loss that is too remote from the breach of contract or tort
What is the old test for remoteness?
The old test for remoteness in tort cases was that a defendant would be liable for all the damage suffered by the claimant as a direct consequence of the tort, regardless of whether such damage was reasonably foreseeable
—> Re Polemis [2013] 3 KB 560 (CA)
What is the current test for remoteness?
This current test for remoteness overruled the old one, and in tort cases is whether the damages suffered by the claimant is reasonably foreseeable
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The wagon mound)
- O was responsible for a ship that was docked in Sydney Harbour. Due to the negligence of one of the crew, some furnace oil leaked from the ship and formed a thin film over the surface of the water. This spread to the wharf owned by M, where welders were repairing another ship.
- Some days later, sparks from the welding ignited the oil and the resulting fire caused serious damage to M’s wharf.
- Privy Council held that O was not liable forseeable that damge to M’s wharf by fire would be caused as result of O’s negligence
Hughes v Lord Advocate [1963] AC 837 (HL)
- The defendant’s workmen left an open manhole covered by a canvas tent and surrounded by warning paraffin lamps. While playing with one of the lamps, an 8 year old boy knocked it into the manhole. This resulted in an explosion, which caused the boy to be knocked into the manhole and was badly burned.
- Court held that the defendant was liable as the types of damages (burns) was reasonably foreseeable; the fact that the exact means by which the burns occurred might not be reasonably foreseeable did not matter
