Self Help Remedies

Self-help remedies in CONTRACT

Allow for termination by elevating a term to a condition Contracts are interpreted with the aim to give effect to the intention of the parties If a term has been designated as a condition, generally it is seen as a serious term But not if result so unreasonable that court may decide that it could not have been the intention of the parties (L Schuler v Wickham Machine Tool Sales Ltd [1974] A salesman, and the contract said that the salesman had to visit the customers at least once a week, Argued: to be a condition of the contract and that those visits had to take place. He didnt visit and that warranted the contract to be terminated. Although it was Held: the word condition was used often throughout the contract and therefore the word was ambiguous. Additionally, the wording was not logical and the clause was not allowed to determine termination) A breach of a condition of a contract allows the innocent party to terminate the contract, and to regard the contract as being at an end. Contract still exists, acts done are validly done, future obligations need not be performed.

Penalty clauses or liquidated damages Penalty clauses Acceptable if a genuine pre-estimate of damages not punitive Dunlop Pneumatic Tyre v New Garage [1915] Had sales contract with a number of retailers that sold their tyres, the agreement was that they had to always sell above the list price, and if that was breached a penalty of 5 pounds for each of the tyres that the retailer sells below the retail price. Held: to be liquated damages, ie: a genuine pre-estimate of what the loss would actually be. When is a clause a penalty clause? Amount of the payment/damages Outrageously high? Extortionate? Genuine pre-estimate of the loss? Breaches to which the liquidated damages apply? Narrowly or broadly defined? Expressed purposes of the liquidated damages penalties All the circumstances will be considered.

Self-help remedies in TORT

Tort abatement of nuisance Privilege of abatement Law however does not favour abatement above legal action Law supports abatement only to extent of what is necessary to avert the harm Requires notice to owner if on land of another Unless immediate danger to life or health making it unsafe to wait Traian v Ware [1957] One property higher than the other on a slope, on the lower property was a bank to stop the water from rushing down into the lower property. Although the lower property maintained the bank but during heavy rains the higher property would flood. As such when it looked like it was going to rain heavily the higher property owners would go onto the lower property and dismantle some of the bank causing the water to rush down and caused damage. Argued abatement of the nuisance Held: it was unreasonable and done without notice, and that severe damage caused and it was said the abatement went over and above want the law warranted. Need not wait for loss to occur can be pre-emptive Abatement damages before can be claimed, probably not for damage AFTER abatement

Tort trespass to land Can evict uninvited intruders/trespassers May use reasonable force to achieve that purpose (reasonably necessary) Proportionality is important Should ask to leave first Same rule as protection of self or goods from physical attack Cannot evict persons who are/were tenants without recourse to legal process (statutory) Defensive actions against trespassers Intention is important: Deterrent or Retributive? Would depend on the nature of the attack, whether it is property or person attacked, and currently applicable legal and social standards as to degree to which property may be protected Bird v Holbrook (1828) Owner of Tulips people stole them. So the owner set up a shotgun and some trip wires, and consequently the thieves would get shot. Held: It was not acceptable, primarily due to proportionality, and there was no warning signs. Squatters Can also evict persons in possession of property and squatters Need not go to court but recommended Can use force that is reasonably necessary Need to use a legal process if persons trespassing had with lawful right previously

Tort defence against trespass to person Can defend against attack with force but not a greater degree of force than is reasonable when protecting human life What is reasonably necessary? Question of proportionality Self-defence defences can be rejected if force is excessive Note narrow exceptions for use of force against other person Fontin v Katapodis (1962) Local Harware, F was an employee and K was a customer they had an argument F started fighting K and K threw a piece of glass, and cut Fs wrist. Held: that K self defence was not proportional. Underhill v Sherwell (1997) Disproportionate.

Damages

Damages for Torts Initial analysis: Identify the parties, identify the injuries/losses; consider what the Pl wants Starting the answer: Limitation of Actions Act in time? Establish liability: Cause of action, causation/remoteness (CLA s 11) Consider mitigation, contributory negligence (but effect of CN is at end) Heads of damage: Pre-trial losses (Special damages) Past expenses and costs, including medical, care (+ and -) Past losses through lost income, superannuation (+ and -) Interest? Tax? (can deal with this at the end as well) Future losses (Post-trial losses) Future loss of earning capacity (+ and -) (remember vicissitudes of life and discount rate) Future medical expenses and costs of care etc (+ and -) General damages as per s 51 CLA NOTE under each head of damage consider amounts to be added, off-set, deducted, etc; mitigation etc. Also comment on the principles behind granting recovery, then show how the amount is to be calculated. Other amounts eg collateral benefits, interest, tax, the discount rate Effect of contributory negligence, apportionment where appropriate. Payment options lump sum or structured settlement

Burden of proof: balance of probabilities Onus of proof is on Plaintiff (Pl) (s 12, CLA)

LIMITATION OF ACTIONS ACT 1974 11 Actions in respect of personal injury Actions for negligence, trespass or nuisance (contract or tort) involving personal injury or death must be brought 3 years from the date on which cause of action arose. 29 Extension in cases of disability If Pl suffered from a disability preventing the bringing of an action, the Pl may bring the action up to 6 years from the date on which the disability ended (or the person died)

The CLA on Causation and RemotenessCLA Division 2 Causation S 11 General Principles1. A decision that a breach of duty caused particular harm comprises the following elements (a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).2. In deciding in an exceptional case, in accordance with established principles, whether a breach of dutybeing a breach of duty that is established but which can not be established as satisfying subsection (1)(a)should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach. CLA Division 2 Causation Section 11 Contd3. If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and(b) .....(about statements allowed by the Plaintiff)4. For the purposes of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of that duty.

Causation Factual causation But for Common sense approach March v Stramare (1991 High Court held that the Ps negligence did not break the chain of causation when it was through the negligence of the truck driver who parked his truck in the middle of the road, that the risk of an accident and injury was created. Even though the Plaintiff was drunk when driving, the actions of the truck owner still satisfied the but for test. It was still held to be to be a cause of the consequence merely on the basis of logic/common sense one cannot argue differently. Bennett v Min of Community Welfare (1992) must be merely a cause.

Causation: Proportionate liability in CLA CLA s 28 Part 2 applies to claims for economic loss and/or damage to property caused through breach of duty of care Part 2 does not apply to consumer claims or personal injury Claim can be apportioned by the court to reflect what court considers to be just and equitable, having regard to the extent of the Defs responsibility for the loss or damage (s 31(1) (a))

Scope of liability /Remoteness/ Novus actus interveniens Polemis test (Re Polemis and Furness, Withy & Co [1921] Someone dropped a piece of wood into the hull of the boat, and it caused a fire, and the ship burned down. Held: All direct consequences will be held liable.) Wagon Mound No 1 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] Filling up the boat with oil, and that caused oil spill, flowing onto other boats. People welding, noticed the oil, and made an inquiry. But Continued welding and the oil caught fire burning the whole dock. Held: defendant will be only liable of what would be reasonably foreseeable. Wagon Mound No 2 Overseas Tankship (UK) Ltd v The Miller Steamship Co (Wagon Mound (No 2)) [1967] cannot be reasonably foreseeable if far-fetched and fanciful. Reasonably foreseeable to the Pl; not far-fetched and fanciful Application of the reasonably foreseeable test: Type of damage Hughes v Lord Advocate [1963] Fuel air explosion, relatively unknown event, child was severely injured. The extent of injury is irrelevant, only must have been foreseeable that there would have been an injury. Versic v Connor [1969] Appears that the court will sometimes focus on the sequence of event so that, if each step is itself foreseeable, liability will be fastened on the D even though the end result may appear extraordinary. In this case, the vehicle the husbands care was travelling in overturned as a result of a collision due to the negligence of the D. His head formed a dam for water flowing in the gutter and he drowned. Jacobs JA held that the drowning itself was reasonably foreseeable because each of the specific events leading up to the drowning was RF. Extent of harm egg shell skull Nader v Urban Transit Authority of NSW (1985) Kavanagh v Akhtar (1998)) A was a devout Muslim. Following the injury, A was forced to cut her hair. As a result husband abused her, causing breakdown of their marriage and leading to the onset of As psychiatric illness Mason P: Found K liable for psychiatric damage suffered subsequent to receiving the head injury, because the harm suffered was of the type of harm RF (Type of harm was psychiatric injury) Egg-shell skull rule applied, in that the D must take the P as he finds them, in this case from a particular cultural background Also consider scope of reasonable foreseeability Havenaar v Havenaar [1982] vulnerable to addiction egg shell skull etc.

Mitigation Pl has duty to mitigate losses flowing from Defs wrong E.g. If Pl unreasonably refused medical treatment that would have alleviated the harm, not fully compensated Court can reduce damages Onus on Def to prove Pls failure to mitigate Reasonable mitigation Reasonable person test what would a reasonable person in the Pls circumstances have done?Glavonijc v Foster [1979] Karabotsos v Plastex Industries Pty Ltd [1981] and Alcoa Minerals of Jamaica Inc v Broderick [2000]. Couldnt afford to fix. What if mitigation provides a benefit to the Pl? Hoad v Scone Motors Pty Ltd [1977] Notice regarding mitigation CLA s 53 Def can give written notice to suggest specified actions Pl should take to mitigate Pl still has duty to mitigate Court will consider whether Pl acted reasonably if he/she did not follow recommendations Consider if Def offered to pay Failure to follow can reduce award of damages if unreasonable Principles of awarding damages To put the Pl in the position as if the tort had not been committed Insofar as money can do so No profit to be made, Pl not to be in a better position, Pl not to obtain a windfallAssessment Once-and-for-all rule The once-and-for-all-rule CL damages cover past and future loss Award given by a lump sum Periodic payment possible through statutory exceptions CLA CLA Chapter 3 Part 4 Structured settlement sections 63 - 67 Policy reasons? Litigation to finally decide the dispute Fair? Compare Fitter v Veal (1701) 4 exceptions to Once-and-for-all rule:1. Substituted award by appellate court (rare)2. Where there are different causes of action Brunsden v Humphrey (1884) Property damages and personal injury3. A continuing tort, e.g. Recurrent nuisance or trespass4. Statutory exceptions s 63 of CLA Qld

Date of assessment Damages assessed by reference to: Date on which cause of action arose Date of tort Date on which injury occurred/became visible Court has discretion to fix own date to provide fair compensation Date of judgment Damages for Personal Injury and defamation normally assessed as at the date of judgment

Special damages Pre-trial Loss Special losses up to date of trial Actual losses suffered, Expenses actually incurred, Must be claimed, Must be specially proved, Capable of accurate calculation

Economic Loss Loss of wages and earnings after verdict Sharman v Evans Out of pocket expenses

Medical expenses Past expenses Proof required Reasonable

Gratuitous services Services rendered by a family member without compensation Would otherwise have been rendered by a professional Pl is Compensated Capped by CLA s 59 Necessary Needs arise solely out of the injury Griffiths v Kerkemeyer (1977) HCA Family and friend helped him, could he be compensated for the care already received. Yes.

Future LossFuture economic loss and lost earning capacity Not easily quantifiable Must establish: earning capacity has in fact been diminished through negligently caused injury reduction in earning capacity will cause a financial loss Medlin v State Govt Insurance Commission (1995) HCA Professor, was in accident, and was in a lot of pain. He decided to retire early. The court held: that the early retirement was justified, was compensated for lost of earning capacity. Earnings and earning capacity - Capped under the CLA s 54 Court to disregard wages above a certain limit - 3 times average weekly earnings (AWE) Deductions: Discount (CLA s 57 sets discount rate at 5%) Vicissitudes of life Possible periods of unemployment, leave, illness, accidents, etc Superannuation s 56 of CLA

Medical Expenses Future expenses - Injuries requiring further medical or other services; Goods and treatment necessary for health and comfort Reasonable At home or in hospital? Fairness to both Pl and Def Sharman v Evans (1977) HCA young girl had some secretarial qualifications, was in a car accident, which left her paralysed, and many other problems. The court found that her living expenses if she was normal would have left her without any money in the first place. As her necessities were already compensated she would have no economic loss. Also a specialist part time care was held to be reasonable.

The cost of alterations to home etc Pl is entitled to recover cost of alterations to home to accommodate post-injury position E.g. Wheelchair ramps Cost has to be reasonable Munzer v Johnston [2009] QCA M Judge allowed for $90,000 for modifications, and considered that this amount fairly reflected the actual costs that Ms Munzer would reasonably incur in providing appropriate accommodation adapted for her accident-caused disabilitiesGeneral damages as per CLA Definition of General damages s 51: Pain and suffering Loss of amenities of life Loss of expectation of life Disfigurement The injury scale value and calculation schedule 4 CLA

Loss of amenities and enjoyment of life Loss of ability to consciously enjoy life to the full or to the extent that Plaintiff would have enjoyed it, had it not been for the injury Awarded both objectively and subjectively: Takes into account Plaintiffs awareness of loss Capped by CLA s 61 and 62 cap on non-economic loss Skelton v Collins (1966) QCA (unreported) Distinction made b/t objective and subjective aspects of loss of the amenities of life. Pure objective loss, as where P has been rendered into a permanent state of coma, is satisfied by the award of a small sum. Subjective loss, as where P remains fully conscious of his/her plight, may be compensated with a substantial award. Sharman v Evans (1977) HCA Many consequences of injury are not capable of remedy by damages, esp. those of the most personal character eg. loss of opportunity of a fulfilling marriage, parenthood, sexual satisfaction, realisation of ambitions To the extent that damages awarded under other heads produce freedom from economic uncertainty and the availability of funds for pleasurable activities, the less will be loss to compensate under this head.

Pain and suffering (past and future) Includes physical and mental pain Skelton v Collins (1996) Impossible of precise calculation Difficulty not to prevent calculation OBrien v Dunsdon (1965) HCA general standards prevailing in community Capped under CLA s 61 and 62 General damages include pain and suffering and disfigurement

Loss of expectation of life Lifespan shortened as result of injury By how much? Basis of calculation = historical tables of Aus Bureau of Statistics Awarded for prospective happiness in period by which life has been shortened Capped under CLA s 61 and 62 non-economic loss defined to include loss of expectation of lifeLoss of consortium, loss of servitium s 58 Compensation available, subject to requirements Statutory requirement CLA s 58 Injured person died as result of injuries, OR General damages for injured person assessed (before allowing for Contributory Negligence) at $30 000 + Loss of servitium capped at 3 times AWE per week

A further note on contingencies/vicissitudes Malec v JC Hutton Pty Ltd (1990) QSC Rufo v Hosking (2004) NSWCA When looking to the future (e.g. a 10% chance in future that Pl would become unemployable in any event) a chance is taken into account, provided not trivial, not insignificant Degree of probability taken into account in awarding damages Loss of a chance in medical cases not allowed generally

Discount rate Future expenses are paid at time of verdict Present value of future loss to be quantified by adopting discount rate 3% at Common Law 5% in Qld (for actuarial formula) Allows for inflation, future changes in rates of wages, prices, tax, income on sum awarded if invested

Collateral benefits and set-offs Benefits from another source Workers compensation Statutory compensation scheme repay or credit to employer if paid Fox v Wood 1981 HCA Insurance benefits If 3rd party insurers pay out-of pocket expenses upfront have to be deducted from final damages (Case references in Covell & Lupton) Private insurance benefits, gifts and voluntary employers payments No deductions Espagne (1961) Gifts Public or private sources not set off Ex gratia payments under statutory schemes may be set off Espagne (1961) Benefits provided by employer: What is the essential nature of the benefit? Does it replace wages/ relieve destitution etc? Was the benefit conferred with the intention that the Pl should enjoy it in addition to any damages? (Alley v Minister of Works)

Interest Interest lost on amounts paid before trial courts can award interest on late payment (discretionary) Compensate for having been kept out of money (MBP (SA) Pty Ltd v Gogic (1991) HCA damages awarded was just over 80,000, included in that was 20,000 interest on pain and suffering. Held: cannot have interest of pain and suffering at a commercial rate) Not automatically on all heads of damage Not on general damages at all (CLA s 60(1)) Not on gratuitous services provided to injured person (CLA s 60(1)) CLA s 60(2) interest at appropriate rate

Taxation Determine whether or not the award will be taxed If to be taxed Pl awarded entire or gross profit of income, no amount deducted for tax If not to be taxed Effect of tax taken into account when calculating the lump sum but approach award in a broad and practical way without disproportionate importance. Cullen v Trappell (1980) HCA Discount rate makes allowance for tax on income from investment of the sum awarded as damages

Contributory negligence Contributory negligence is a Pls failure to meet the standard of reasonable care for his or her own protection, where such failure is a legally contributing case to the injury (not necessarily the accident) sustained. (Negligence here relates to behaviour which involves a risk of injury to the Pl) Braund v Henning 1988 HCA Joslyn v Berryman 2003 HCA Pennington v Norris 1956 HCA P struck by Ds car as he was crossing the road at night, at trial P found contributorily negligent and damages reduced by 50%) court has a wide discretion when it comes to making the apportionment in order to determine just and equitable apportionment court must compare the culpability of P and D in making the comparison a court should look to: who departed from the standard of care the most; whether the careless (in this case on the part of the P) was that bad here, not looking when crossing the road is something which is commonly done and importantly, did not endanger anyone else (whereas D was speeding in wet and misty conditions at a time when many people were leaving the closing pubs) Corr v IBC Vehicles Limited 2008 House of Lords UK Wynbergen v Hoyts Corporation 1997 HCA Effect = damages award is reduced proportionally according to courts apportionment of responsibility between the parties CLA s 24 Contributory negligence of the Pl can defeat a claim Reduction of 100% is possible. Is the last adjustment to be made apportionment generally done last Standard of care required: Same as for Def (CLA s 23 (1)) Reasonable person in the position of the Pl, with consideration of what the person knew or ought to have known (CLA s 23 (2) (a) and (b))

Exemplary (punitive) and aggravated damages Exemplary damages: Purpose = punitive, not compensatory Aggravated damages: Purpose = compensatory Is a head of compensatory damages Plead specifically, identify separately However available for all torts in principle

Aggravated damages Awarded to compensate for injured feelings or dignity Not available for negligently caused personal injury (some exceptions) s 52 CLA S 52 CLA: Exemplary, punitive or aggravated damages cannot be awarded for a claim for Personal Injury (s 52(1)) except for: Unlawful intentional act done with intent to cause personal injury Unlawful sexual assault or other unlawful sexual misconduct Available for intentionally caused personal injury; also trespass, false imprisonment, defamation, assault, etc Actual physical injury may be insignificant although aggravated damages awarded for injury to feeling or dignity. Who is liable for aggravated damages? Are Defs jointly and severally liable? Konstantinidis v Foreign Media Pty Ltd [2004] NSW SC liability of the 4th Def reduced because did not engage in as bad defamatory conduct Bateman v Sheperd (1997) ACTSC 2 Defendants ordered to pay more, did not tender an apology De Reus v Gray [2003] VSCA G had traffic fines, warrant issued for her imprisonment, police came to her house to arrest. She said her children at school, and she just had an operation. 2 days later, police stripped her, which was very unnecessary. Compensatory- $62,000. Exemplary- $250,000.aggravated damages are assessed on the basis of the particular malice of each joint tortfeasor Distinction between aggravated and exemplary damages also in Zhu v Treasurer of the State of New South Wales [2004] HCA Conduct of Def was high-handed, quite extraordinary, reprehensible, disgraceful, precipitous, oppressive Both aggravated and exemplary damages awarded and affirmed by the HCA

Exemplary damages Purpose is punitive Also intended to deter and stop need for revenge and self-help that threatens peace and order Defs conduct was high-handed, insolent, vindictive or malicious, fraudulent, cruel, or showing a contumelious disregard for the Pls rights Whitfield v De Lauret & Co (1920) oppressive, insulting, reprehensible, cruel, malicious Plead specifically Often claimed, rarely awarded. Awarded in addition to compensatory/nominal damages, will be a windfall. General rule is that if proof of loss is part of the gist of the action, then exemplary damages will be parasitic on such compensatory damages must first satisfy the host claim. Can have a claim for exemplary damages in a claim for negligence (Coloca v BP Australia [1992] VSC) Typically available in assault, battery, false imprisonment, etc Can be awarded separately to different defendants See XL Petroleum (NSW) Pty Ltd v Caltex Oil (1985) HCA If likely a criminal penalty would occur, it is likely in civil court that exemplary damages would be awarded. Other purpose can also demonstrate disapproval of the court

Intoxication S 46 49 CLA S 46 effect on duty of care and standard of care (irrelevant for our purposes) S 47 if the Pl was intoxicated at time of breach of duty AND the Def alleges Contributory Negligence by the Pl S47(2) CN then presumed S47(3) Pl may rebut the presumption by establishing on balance of probabilities: That intoxication did not contribute to the breach of the duty That the intoxication was not self-induced. S47(4) unless presumption rebutted, the court must allow deduction of 25% as a minimum from damages award (can be more as appropriate) PLAINTIFF WAS DRIVER OF VEHICLE IN ACCIDENT S 47 (5) If the injury was sustained through a motor vehicle accident, and the Pl was the driver, and blood-alcohol concentration of Pl is 150mg per 100mLl or more OR driver was so much under influence of alcohol or drugs to be incapable of exercising effective control of the vehicle, Then - minimum reduction is 50% PLAINTIFF RELIED ON SKILL & CARE OF INTOXICATED PERSON CLA s 48 Contributory negligence is presumed if Pl relying on care and skill of person known to be intoxicated Section only applies if: Pl was 16 years or older at time of breach of duty, and Pl relied on care and skill of Def intoxicated at time of breach, and Pl was aware of ought reasonably to have been aware that Def was intoxicated Contributory negligence will be presumed (s 48(2)) Pl may rebut the presumption if Pl established on balance of probabilities that Defs intoxication did not contribute to the breach of duty OR Pl could not reasonably be expected to have avoided relying on the Defs care and skill. Unless presumption rebutted, 25% reduction for contributory negligence minimum or greater if appropriate If this section applies, there can be no defence of Voluntary Assumption of Risk (s 48(5)) If s 48 applies, then s 49 can also apply if: Pls injuries caused by motor vehicle accident AND Pl was passenger in motor vehicle AND Def was driver of motor vehicle AND Defs blood alcohol level was 150 mg per 100 mL or more OR Def was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle THEN minimum reduction is 50% For purposes of s 49 Pl is taken to have relied on care and skill of the Def.

Expressions of regret s 68 72 CLA s 71 expression of regret is a written or oral statement expressing regret for the incident to the extent that it does not contain an admission of liability CLA s 70 an expression of regret (for Personal Injury caused through fault or negligence) is not to be construed as an admission of liability CLA s 72 not admissible in evidence Structured settlements s 63 - Whole or part of damages award for personal injury to be paid in periodic payments; Funded by annuity or other agreed means S 64 (1) - Court to provide parties with reasonable opportunity to negotiate a structured settlement Court to advise parties if it intends to make an award for future loss of $100 000 or more. Parties may apply to court to make order to approve structured settlement - binding s 66: Lawyers have important obligations if Pl wants to negotiate settlement: Advise Pl in writing that Structured settlements are available; and Pl should get independent financial advice

Certainty of loss, future contingencies and loss of a chance The loss claimed must be established with sufficient substance and certainty to satisfy the court: existence and extent Can vary according to nature and circumstances of loss Past losses more certain Future losses less certain Distinguish between the roles of Causation Remoteness Certainty Malec v JC Hutton Pty Ltd (1990) HCA Malec got a disease from working with raw meat, he had a problem with his spine and the disease aggravated the problem, he got depression. Court Determine: what was the cause of the depression the disease or the pre-existing problem. Look at the degree of probability and the degree was high enough to damages. Rufo v Hosking (2004) NSWC When looking to the future (e.g. a 10% chance in future that Pl would become unemployable in any event) a chance is taken into account, provided not trivial, not insignificant Degree of probability taken into account in awarding damages Tabet v Gett (2010) HCA P was a girl, admitted to hospital, suffering from severe headaches and fever; she suffered a seizure in the hospital, caused by a brain tumour. The seizure caused severe injuries. Argued that doctors would have identified tumour if ct scan performed earlier. Negligent failure to diagnose tumour (rejected). Negligence of doctor, deprived her the chance of a better medical outcome, accepted first, on appeal failed, HCA: No compensation for the loss of a possible better medical outcome Standard test of causation needs to be satisfied Possibility exists for claims for loss of chance, in specific situations, e.g. In increased risk of injury, claims in contract, and circumstances that are significantly different to those here. Loss of chance actions ended or not?

Concurrent and joint tortfeasors Joint tortfeasors: Same tort Act in concert or are vicariously liable Several concurrent tortfeasors: Act independently, not in concert Inflict the same damage Successive tortfeasors: Act independently Inflict different damage Generic term concurrent tortfeasors A Defendant can institute action against a concurrent tortfeasor for a proportion of the loss for which the Def is liable Court will decide based on what is just and equitable based on responsibility for the damage (Law Reform Act Qld 1995 (s6))

Property Damage For damage to personal property, under the CLA apportionment possible. Damage assessed to put Pl in position as if the loss had not occurred. Glenmont v OLoughlin [2000] SASC Dinosaur destruction of goods with rebuilding cost of about $3,0 million, income-producing, some speculative income. $3,250 000 for rebuilding the dinosaur and $5 m for loss of commercial opportunities. An amount of $2m for interest was also awarded Evans v Balog [1976] NSWCA Little ramshackle house, a lot of construction around the house, and the construction was loosing its foundation from the construction. Eventually became inhabitable. Wanted to repair the house, and compensated for the repairs. Argued they have suffered no loss, as there was no value in the house, (failed). The court awarded damages. What is reasonable? Jansen v Dewhurst [1969] VSC cost of repairs or value? Key concepts: Compensation can be paid for land or goods Compensation is available for damage or destruction Issue is about how we define the value (the quantum) Cost or repairs (full restoration, reconstruction) Cost of replacement (generally no discount because of new for old) Diminished Market value Consequential economic loss (based on fair market value)

Breach of contract general Cause of action in contract = breach Causation breach in fact caused injury or loss Remoteness loss suffered not too remote Pl has not breached duty to mitigate unnecessary loss Onus on Pl (first 3), onus on Def (last 1) Standard of proof - Prove on a balance of probabilities: Cause of action and Causation THEN once causation established focus is on quantum: Assessed even if chances are less than 50% To be assessed even if difficult to assess adjusted for: Contributory negligencePrinciples Duty to perform a contract Common Law Compensatory damages to compensate Pl for the wrong of the Def Equitable remedies: (discretionary) Specific performance Injunctions Principle: Robinson v Harman (1848) (UK) Pl to be placed in position (as far as money can do it) as if contract had been performed Underlying requirements identical to Torts, but the elements are applied differently

Cause of action Only 1 cause of action = breach of Contract Nominal damages Prove actual loss for more than nominal damages Can claim damages without termination of contract. Exceptions Anticipatory breach Claims for Expectation damages Pl should be able and willing to perform their side of Contract Termination for anticipatory breach only show intention

Causation Loss must in fact be caused by Defs breach but for test used as rule of thumb Difficulties where intervening event or Contributory Negligence Reg Glass v Rivers Locking Systems 1968 HCA Install a security door, the premises was robbed, and the door was defective. And it was not fit for purpose. Argued, the burglary would have happened anyway, although the court found against the security company using: but for inadequate with multiple causes or intervening events not the exclusive test for causation Breaks on the chain of causation Intervening acts Contributory negligence

Contributory Negligence Negligence of Pl can break chain of causation not reliant on breach by Def Lexmead (Basingstoke) Ltd v Lewis [1982] UKHL P purchased towing hitch, found it was defective and he continued to use it, eventually an accident occurred, P suffered loss. Causal link broken, as P chose to use defective towing hitch. Apportionment does not apply to breach of contract. Cf Astley v Austrust (1999) (HCA)Law Reform Act S 5: a wrong means an act or omission that(a) Gives rise to a liability in tort for which a defence of contributory negligence is available at common law; or(b) Amounts to a breach of a contractual duty of care that is concurrent and coextensive with that duty of care in tort. S10 Apportionment of liability in case of contributory negligence:1. If a person (the claimant) suffers damage partly because of the claimants failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else (a) A claim in relation to the damage is not defeated because of the claimants contributory negligence; and(b) The damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimants share in the responsibility for the damage.The position now Breach by Def of contractual and tortious duty of care + duties in Tort and Contract are concurrent and co-extensive + Contributory negligence court reduces damages to just and equitable CN does not defeat claim

Intervening events Novus actus interveniens Was event reasonably foreseeable by Def? Monarch Steamship v A/B Karlshamns Oljefabriker [1949] UKHL (war as intervening event) Alexander v Cambridge Credit Corp (1987) NSWCA failure to advise company of dire financial straits, they became insolvent.

Remoteness Damage not too remote in law Hadley v Baxendale (1854) UK (two limbs) Damages that can be recovered for breach of contract are: those arising naturally in usual course of things from breach of Contract itself OR those losses that were reasonably within the contemplation of both parties at time of contract as probably result of breach

First limb in Hadley v Baxendale Damage that arises: Naturally, in usual course of things, as probable result of the breach Presumption - Def is prima facie liable for these direct losses A presumption of fact Pl need not adduce evidence that the Def was aware of the risk of these damages. What is/are natural loss(es)? C Czarnikow v Koufos [1969] AC shipping contract, contracted to ship sugar. Issue of delay, by the time the sugar arrived, the sugar price went down, and therefore suffered a loss. Confirmed by Burns v MAN Automotive (1986) HCA Alexander v Cambridge Credit Corp (1987) NSWCA Jackson v RBOS [2005] UKHL J an importer of dog chews, imported from Thailand, import in bulk, and repackaged in smaller bags and then sold them. They had a contract with economy bag. But EB did not know that they were ripping them off. They both had the same bank, the bank gave the invoice of a transaction with thai company and importer to EB, who subsequently terminated contract. Breach of duty of confidentiality. Note: ask reasonably foreseeable? question at time parties made the Contract Different from approach in Torts H Parsons (Livestock) v Uttley Ingham [1978] QB CA Contracted to install a silo to feed pigs, failed to install it properly, and the food got mold on it and pigs died, Held: Vet bills yes, future loss of income no. Cth v Amann Aviation (1991) HCA

Second limb in Hadley v Baxendale Applies if first limb test not satisfied Pl must prove that the Def knew or ought to have known that such loss would be probable result of the breach No presumption that Def liable Show evidence that unusual (indirect) damage was in fact contemplated by both parties at time of breach Victoria Laundry v Newman Industries [1949] KB CA VL commercial laundry firm, they had problem with boiler, had contract with NI to replace the boiler, came twenty weeks late. VL had contract with Government to dye things in different colour, and wanted to pass that loss of profit to NI. Held: could not claim because of not in contemplation, and it was different form of work. Indirect losses damage is of an unusual type Innocent P to prove that Def knew or ought to have known that damage would be probable result of breach And in contemplation of both parties at time of C Mere knowledge is insufficient need an undertaking to bear the unusual loss (as term of Contract or orally) Panalpina Intl Transport v Densil Underwear [1981] Lloyds Rep Told to be delivered before Christmas, werent. Liable for the loss of profits. Undertaking can be implied Factors what was Defs actual knowledge; nature of the Contract, business people, price, extra consideration/payment Then infer that risk for unusual losses accepted because reflected in price

Mitigation Damages can be reduced if Pl failed to take reasonable steps to reduce loss OR Pl did take reasonable steps and loss actually reduced Attempted mitigation that increases loss is recoverable as damages Cost of mitigation is recoverable (irrespective of whether or not it was effective) Pl has duty to mitigate As set out in British Westinghouse Electric and Manuf Co v Underground Electric Railways Co of London [1912] UK AC BE manufactured turbines, for Underground, but the turbines did not work at the level wanted. Underground sued for breach. But Underground bought more turbines, but they worked better and saved them money. Held: that they reduced the compensation by the savings made. Pl to take all reasonable steps to mitigate loss Pl debarred from claiming any part of the damage which is due to his neglect to take such steps A special kind of duty not actionable for breach, just reduces damages What is reasonable? Accept an offer of help from Def (alternative performance or another Contract) Payzu v Saunders [1919] UK KB

Credit for benefits Through breach Pl gets benefits not otherwise available Pls gain reduces the Defs liability See Westinghouse

Anticipatory breach Anticipatory breach when prior to the date set by the Contract for its performance, one of the Parties makes it clear that its obligations will not be performed. Is a repudiation or renunciation of Contractual duties Or inability to perform the Contract When there is anticipatory breach, innocent Party can choose: Affirm the Contract ignore the anticipated breach and hold other Party to the Contract No duty to mitigate, C remains on foot until time for performance actually arrives Accept repudiation and terminate the Contract Duty to mitigate arises immediately Pl can seek damages immediately (date for assessment will be date set for performance)

Affirm or terminate? Choice has NB consequences1. Quantum may differ 2. Affirmation places no duty on Pl to mitigate Schindler v Northern Raincoat Co Ltd [1960] Restrictions on this principle - White & Carter v McGregor [1962] UK AC Clea Shipping Corp v Bulk Oil Intl (the Alaskan Trader) (No 2) [1984] UK Contract can be affirmed by seeking specific performance Can still terminate later for further breaches

General principles damages for breach of Contract Assessed at date of breach, but flexible Johnson v Perez (1989) HCA Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007] UKHL Shipping case, contracted into for the charter from 98-01. Term, in the event of a war contract can be terminated. In 01 gave anticipatory breach, just as arbitrator made his decision, war broke out. As the contract would not have existed, as such the damages given were less. Interest on damages from time they occur until judgment executed (CL & statute) If damage award would be taxable (e.g. profit), court awards gross amount without deduction Contracting parties are able to agree on damages in advance But not if it amounts to a penalty Once and for all rule applies

Non-economic loss No punitive or exemplary damages in contract Physical injury caused by breach of contract is generally translated into an economic loss E.g. hospital expenses for food poisoning Historically, mental distress, hurt feelings, loss of reputation, etc, not claimable

Mental distress General rule no recovery in breach of Contract for mental distress Addis v Gramophone Co Ltd [1909] AC employment case, breach of contract by employer, Held: cannot have a claim mental distress in breach of contract. Only recoverable in specific situations: Proceed from physical inconvenience cause by breach Contract is one for enjoyment, relaxation, freedom from molestation Baltic Shipping v Dillon (1993) HCA Cruise into the Antarctic, ship had an accident. She had to be evacuated. And only had half the cruise. Held: Physical inconvenience (freezing cold temperatures) and there fore mental distress damages were awarded. Jarvis v Swan Tours Ltd [1973] QB J booked skiing holiday, had many promises. Sued breach of contract. Did award an amount for the mental distress. Heywood v Wellers [1976] QB Ruxley Electronics and Construction v Forsyth [1996] AC Farley v Skinner [2001] UKHL Bought a property, for 420,000 spent 100,000 on it, close to the airport. Got a surveyor to assess noise, the surveyor said not bad and it was bad. Breach of contract, Held: 10,000 for distress. Johnson v Unisys [2003] AC

Expectation losses Put Pl in position Pl would have been had the Contract been properly performed Loss of profits OR loss of a bargain Party can expect legally to have the Contract performed Assessment of loss is objective See Cth v Amann Aviation (1991) What profit would Pl have received if the Contract had been properly performed? Generally only available once Contract has been terminated

Reliance damages Pls actual costs or wasted expenditure as a result of relying on the Defs contractual promise Payments made under the Contract e.g. Supplying team of workmen ready to work; costs and damages associated with employing a subcontractor Can claim BOTH reliance and expectation losses BUT no double recovery allowed (Cth v Amann Aviation (1991) ) Often used when expectation damages are not available McRae v Cth Disposals Commission (1951) HCA MR he tendered to salvaged a ship, he paid. No ship, but hard to quantify what he would have made. It was based on reliance loss. Also major head of damages in Cth v Amann Aviation tender for supplying aircraft to cth, they were running late, cth anticipatory breach. Not about fixing a bad bargain entitled to amount if the Contract had been performed, even if expenditure not recouped (rebuttable presumption that Contract would not have been entered into if costs not at least recoverable) Pl proves that expenditure was incurred and was reasonable Onus shifts to Def proves wasted expenditure would not have been recouped had the Contract been performed

Double recovery Can P elect which way to calculate a claim, or recover in several different ways at once? Yes see earlier cases (McRae, Amman, etc) But note rule against double recovery Eg Expectation and reliance damages? TC Industrial Plant v Roberts Qld Pty Ltd [1963] HCA Could not recover under both, but elect one. Denning MR in Anglia TV v Reed [1972] Mason & DawsonJJ in Cth v Amann Aviation

Restitution Damages Restitution damages also possible Can get back what you have performed See later in restitution D has benefit in circumstances where it would be unjust to allow D to retain it at Ps expense Heywood v Wellers [1976] QB solicitors fee returned for bad handling of the case Mc Rae v Cth awarded an amount for wasted salvage rights

INDEMNITY DAMAGES also be awarded Indemnity damages Same purpose as in tort to indemnify against loss These damages are not part of the contract These expenses are not necessary for performance of the contract Example new boat has been purchased and because of breach of contract negligent mounting of the engine personal injury. Claims for personal injury possible as part of damages. Case of the exploding light bulb Woolworths v Crotty (1942) HCA Damages awarded where defective light bulb resulted in death breach of an implied term Could not sue in tort no negligence alleged or proven

Loss of an opportunity or chance Loss of chance difficulties in causation, remoteness and quantum Take care how categorised if treated as a causation issue then loss only recoverable if on balance of probabilities loss would have occurred (50% +) (tort) If treated as assessable head of damage (as in contract) recoverable even if calculation cannot be precise Luna Park v Tramways Advertising (1938) HCA Luna park advert in tramways. Breached, claim loss of chance. Held: Could not actually quantify, therefore failed. Cth v Amann (1991) Sellars v Adelaide Petroleum (1994) HCA Chaplin v Hicks [1911] KB She entered a competition for acting contract. She won but some sort of breach of contract, Claimed loss of a chance. Held: Claimed passed. Howe v Teefy (1927) NSWSC Jackson v RBOS [2005] Burger King Corp v Hungry Jacks [2001] HCA

Gratuitous benefits Pl not entitled to damages for loss of benefits which the Def not obliged to provide NSW Cancer Council v Sarfaty (1992) NSWCA Court will look at express and implied terms to determine what Pl has lost Can include tips Mannhaus v Leon [1919] Hairdresser, tips were considered a loss that were to be compensated, because they were an implied form of income.

Damage to reputation Addis v Gramophone Co Ltd (1909) Tort of defamation only Addis does not apply to all breaches of Contract injured feelings, disappointment, loss of publicity and loss of goodwill have been compensated. Flamingo Park v Dolly Dolly Creations (1986) HCA Loss of reputation attributable to breach of contract. Designer had specific style, breach of contract by placing designs on low quality fabric. Held: damage to reputation. White v Australian and New Zealand Theatres (1943) HCA Actors.

Interest Pl is entitled to payment when the cause of action arises If payment is later, then interest for the period between the date on which the loss accrued and the date when the judgment takes effect To compensate for being kept out of their money (MBP v Gogic) Not on all heads of damages not on those that represent loss after the date of judgment

Exemplary damages Not available for breach of Contract Even where contract has been breached maliciously or intentionally Butler v Fairclough (1917) HCA If there is a concurrent claim in torts, court can award exemplary damages E.g. Tort of deceit Inducement of breach of Contract Interference with Contract (See Zhu court awarded exemplary damages for interference with Contract)

EquityEquitable principles (maxims) Examples - Equity will not suffer a wrong without a remedy Equity follows the law Equity will not allow a statute to be used as an instrument of fraud Where there is equal equity, the first in time prevails Equity looks to intent rather than form Equity assists the diligent not the tardy A person who comes to equity must come with clean hands A person who seeks equity must do equity

Specific performance Order from court that directs a party to perform the agreement threatened or actual breachElements An agreement Breach or threatened breach of agreement by Def But contract not terminated CL damages would be inadequate remedy No discretionary defence or denial disentitling reliefAgreement If there is no K or the K is uncertain, or if the K has been rescinded by the Pl, then no SP ordered Doctrine of part performance may apply Transaction unenforceable at law or under a statute may be enforced if equitable doctrine of part performance has been satisfied E.g. Where there is an oral agreement that has to be in writing through statutory requirement. Mainly applied to land Object of the doctrine is to enlarge part performance to full performance. Maddison v Alderson (1883) Housekeeper, A would leave a life estate in land, provided she served him and did not pay her. He died, children kicked her out, Claimed breach. She wanted specific performance. Held: Unequivocal referable to the agreement, relating performance to the actual promise. Merely working did not show part performance. (narrow test) Khoury v Khouri (2006) NSWCA Seven siblings, two of the siblings bought house, merina and peter. One of the brothers had agreement with peter in the formal contract, stating to pay some of the instalments, that peter would transfer the land to him. Peter refused to transfer

Damages are inadequate Equity follows the law so look for legal remedy first, then equitable Adderley v Dixon (1824) UK SP where damages inadequate Zhu v Treasurer of NSW (2004) HCA Examples Sale of racehorse Publication of an apology Contract to settle litigation LAND Land is unique. Equity almost always ordered SP for contracts for sale of land No real substitutes, land may have a peculiar and special value (Adderley v Dixon) Remedy usually has to be available to both purchaser and vendor (mutuality) MONEY (loans) Damages generally adequate for breach of contract to pay money Except: If purchaser can obtain SP, then the vendor can also obtain SP If damages inadequate (some indemnity contracts, security contracts, contracts for payment of money and land) Loan Investment Corp. v Bonner [1970] (NZ) sale of land, and seller undertook to loan money to the purchaser. Specific performance asked for. Held: Specific performance could not have been given, as the loan side meant damages were adequate. Problems arise in agreements to pay money to 3rd parties (privity doctrine) Coulls v Bagots Executor and Trustee Co Ltd (1967) HCA C Granted rights to quarry, the payment of money had to be given MRS coulls who wasnt a party to the contract but both owned the land. Mr C, died, contrac then terminated. Mrs C asked specific performance. Held: denied, as she was not party to the contract. Beswick v Beswick (1968) UKHL the nephew was coal merchant, beswick sold business to nephew, for 8 pounds a month, then after mr B death, nephew was to pay 5 pounds a month to wife. He stoped paying. She took action and she got specific performance. GOODS (Personal property, chattels) General principle contracts for sale of goods not specifically enforceable But if article is of unusual beauty, rarity or distinction (original painting, vintage) damages will be inadequate Not inadequate where supply is merely low (temporarily) Cook v Rodgers (1946) NSWSC low supply of vehicles, damages adequate. Dougan v Ley (1945) HCA Bought taxi, and the license to operate taxi. Limited number of licences. Held: Damages inadequate. Doulton Potteries Ltd v Bronotte [1971] NSWSC PERSONAL SERVICES Damages may not be adequate if the services of a particular person are required Often not possible to obtain SP because of discretionary factors

Discretionary factors After elements have been satisfied: An agreement Breach or threatened breach of agreement by Def But contract not terminated CL damages would be inadequate remedy Court can refuse SP in its discretion Considering defences, denials, and discretionary factors Also public interest issues

Continuing supervision Court may refuse order of SP if the continued performance of the contract will require continuous supervision by the court Court will not order a business to be carried on over an extended period of time (Cooperative Insurance Society Ltd v Argyle Stores (Holdings) Ltd [1998] UKHL shopping centre and they let the anchor unit to Argyll Stores as a supermarket, for 35 years from 1979, with a convenant to keep open the demised premises for retail trade. In 1995, the store was making a loss and Argyll closed, despite the protests of the Coop. The Coop argued that they should be awarded specific performance, on the ground that it was necessary to keep a store open in an otherwise depressed area. The trial judge refused a specific performance order. The Court of Appeal granted specific performance by a majority, because there was considerable difficulty proving a loss suffered and Argyll had acted with unmitigated commercial cynicism. Not an absolute defence its a question of degree Courts do grant orders of SP in building and repair covenant cases despite the need for supervision provided the terms of the order is precise (Argyle Stores)

Personal services PERSONAL SERVICES Courts traditionally do not award SP for breach of a contract for personal services Reasons: Would require constant supervision of the court May compel unwilling parties to maintain personal cooperative relations Difficult to enforce because performance of personal service contracts involve matters of personal opinion and taste Not an absolute rule (CH Giles & Co Ltd v Morris [1972] UK), merely reluctance Depends on whether there is sufficient definition to what has to be done Posner v Scott-Lewis [1987] UK contract in lease to provide a person to carry luggage. Generally reluctant to order SP of personal services contracts except in exceptional cases See also Lumley v Wagner (1852) UK Lumley (P) contracted with Wagner (D) for her to sing at Lumleys theater for three months. Under the contract, Wagner promised not to perform at other theaters while under the contract without written consent. The defendant subsequently arranged to sing at Gyes theater for more money. Lumley sued and sought an injunction preventing Wagner from performing at other theaters. The trial court granted injunctive relief for the plaintiff. CH Giles v Morris [1972] UK complex sale of shares, obligation of actually engaging somebody as an employee, refused obligation. But specific performance could not have been asked as the contract had not even begun.

Mutuality Should be capable of being awarded to both parties Court is reluctant to do so, but has discretion to grant the Pl SP even though not available to the Def Examples lack of mutuality: Pl has already performed obligations Pl has not performed obligations but that breach can be compensated for in damages Def is guilty of fraud or unconscionable conduct Price v Strange [1978] UK CA Plaintiff successfully sued for specific performance of an oral agreement for an underlease relying on part performance on his part

Hardship Reluctant to order SP if undue hardship or unfairness to the Def Examples: List on p 245 of textbook Patel v Ali [1984] UK P was selling house, the transfer of property was delayed as husband was bankrupt, and patel became sick and had her leg amputated, husband died, she had kids. She did not want to go through selling the house. It would be hardship amounting to injustice Dowsett v Reid (1912) HCA agreement of lease of 5,000 acres, in the land there was small hotel. Landlord had to fix up the property entirely, and pay the rates. The tenant made a massive profit on the property. Argued enforcement would be unfair and unconscionable. Damages would be sufficient. Co-operative Insurance Society v Argyll Stores (Holding) Ltd [1998] UKHL Longtom v Oberon Shire Council (1996) NSWSC Financial difficulties will not normally be enough to substantiate SP

Ready and willing to performAt all material times Pl to be ready and willing to perform the substance of the contract Mulkearns v Chandos Developments Pty Ltd (2003) NSWSC previous breaches to have been cleared; court not as strict as it used to be Def generally shows that Pl is not able and willing to perform by showing that Pl is in breach Must be breach of an essential term Mehmet v Benson (1965) Mulkearns v Chandos Developments Pty Ltd (No 4) (2003) NSWSC Green v Sommerville (1979) HCA

Unclean hands - unmeritorious conduct Official Trustee v Tooheys Ltd Only conduct that relates directly to the equity (equitable remedy) sought E.g. Fraud or undue influence by the Pl But not sharp practice and unconscionability, and innocent misrepresentations

Futility If SP futile court may refuse order E.g. Where the Def can terminate the Contract at will Iambic Pty Ltd v Northwind Holdings Pty Ltd [2001] not futile to order specific performance of a contract to sell shares in a private company where the purchaser could no longer afford the agreed price If the Def establishes that the performance of the Contract is impossible order of SP refused as a matter of jurisdictionDelays Mere delay not enough unless it amounts to an acquiescence or lache Where the delay would result in the Def or 3rd party being prejudiced Lamshed v Lamshed (1963) HCA degree required, based on the circumstances

InjunctionsElements Cause of action (Common law, Equity or Statute) Damages would not be adequate (not an element in the exclusive jurisdiction) Courts discretion should be exercised to grant the injunction Onus: Plaintiff Except on Defendant can raise equitable defences

Causes of action IN EQUITY = exclusive jurisdiction Breach of confidentiality e.g. confidential information Employment: Right to work Nagle v Fielden [1966] N was a horse trainer, needed a license to train, and they were awarded, and she was refused for license because she was a woman. Lodged a claim for an interlocutory injunction. Successful. Buckley v Tutty (1971) HCA B a football player, he had transfers fees for moving around teams, he argued a restraint of trade, it posed an unreasonable restraint, an injunction was awarded. Curro v Beyond Productions Pty Ltd (1993) NSWCA Curro was a presenter for BP, the contract had an exclusivity provision. She got an offer from a rival station. They wanted an injunction in letting C leave. Injunction granted. NOT IN EQUITY = auxiliary jurisdiction Proprietary rights Victoria Park Racing v Taylor (1937) HCA Refused an injunction, as there was no recognised right to privacy. ABC v Lenah Game Meats Pty Ltd (2001) HCA Defamation Chappell v TCN Channel Nine Pty Ltd (1988) NSWSC ABC v ONeill (2006) O a jailbird convicted of murdering a boy in Tasmania. He then confessed to another murder, but the charges were dropped. ABC did a documentary on O and it was fairly defamatory. Court did not grant injunction due to right to free speech. Malicious falsehood Swimsure (Laboratories) v McDonald [1979] NSWSC Granted an interlocutory injunction. Must assess the likely risk. Nuisance Kennaway v Thomspon [1981] QB Noise from water sports club. Injunction awarded, but not the whole injunction claimed. Miller v Jackson [1977] QB NOTE extensive list and discussion in Covell & Lupton p 251 264 Contract Doherty v Allman (1878) UK App Cas Prohibotory vs mandatory. Dalgety Wine Estates v Rizzon (1979) HCA Administrative and Clerical Officers Association v Cth (1979) HCA Good example - Gardena (Australia) Pty Ltd v Nylex Corporation Pty Ltd [2008] FCA 1846 N distributor of gardena, contract to not produce anything in competition wih gradena. They did.

Inadequacy of Damages Only in auxiliary jurisdiction General principle if damages would be adequate, an injunction will be refused. Will threatened wrong cause irreparable harm or injury to Pl or 3rd P? Availability of substitute goods? Special value? What is the financial position of the Def? Can compensation only be obtained through many actions by the Pl? Contract Negative stipulations in a contract will generally be enforced by injunction Curro v Beyond Productions (1993) NSWCA Curro was a presenter for BP, the contract had an exclusivity provision. She got an offer from a rival station. They wanted an injunction in letting C leave. Injunction granted. Argument is often that damages will also be an inadequate remedy

Discretion of the court Unclean hands Kettle and Gas Aplliances v Anthony Hordon AH passing off, but KGA lied about having a patent. Conduct of the Pl Conduct that has immediate and necessary relation to the equity sued for E.g. Misrepresentations- Innocent? Accidental? Continuous or did they stop? For a long or short period?Laches and delayAcquiescence Person knowingly stands by without raising any objection to the infringement of their rights Also Same stuff as in Specific Performance Futility Mutuality Hardship Supervision of the court (not an absolute restriction, question of degree) Personal services Lumley v Wagner (1852) EWHC Warner Bros v Nelson [1937] KB Curro v Beyond Productions (1993) NSWCA Page One Records v Britton [1968] UK Warren v Mendy [1989] UK CA Hill v CA Parsons [1972] UK CA

Types of InjunctionsInterlocutory injunctions Preserve the status quo where wrong or threatened wrong will cause irreversible damage See Lord Diplock in American Cyanamid v Ethicon [1975] UK Sup Ct t]he court no doubt must be satisfied that the claim is not frivolous or vexatious If extremely urgent ex parte application Can be mandatory, prohibitory, and in either of the jurisdictions Elements A recognised legal or equitable right Granted in discretion of the court Clarity as to what Def should/not do + Pl has a prima facie case (probably entitled to relief at trial) Balance of convenience Note not rigid formulae assisting the court Prima facie case Used to be serious question to be tried as a threshold test After HCA case ABC v ONeill (2006) HCA now prima facie case See also Beecham Group Ltd v Bristol Laboratories (1968) HCA) Means a sufficient likelihood of success: The nature of the rights asserted by the Pl and Practical consequences likely to follow from the order sought In defamation interlocutory injunction only granted if also a very clear or exceptional case. Considering evidence and arguments for both sides; Def to prove defences Balance of convenience Which one weighs more: Inconvenience or injury to the Pl if the injunction is refused?; Or Injury suffered by the Def if the injunction is granted (Beecham) Pl has onus Numerous and varying factors considered Strength of the Pls case Irreparable harm or damage (part of the balance of convenience evaluation) Also - Has Pl given an adequate undertaking to pay damages if injunction is dissolved Delay unexplained delays can be fatal esp if they have prejudiced the Def Undertaking as to damages Pl undertakes to compensate the Def if the injunction is later dissolved Voluntary for the Pl Injunctions operation is dependent upon the giving of this undertaking if never given, injunction never operative Undertaking may be dispensed with If inequitable If in the public interest

Mandatory injunctions Positive injunction compels to do something Can be final or interlocutory Types: Restorative Enforcing Courts will unlikely grant if Specific Performance is not availableRedland Bricks v Morris UK AC RB's quarry operations led to M's farmland subsiding. There was evidence that there would be more subsidence in the future and to cost it would cost 30,000 pounds. The land was only worth 1500 pounds, and the House of Lords refused a restorative injunction. - there must be a strong probability of grave damage in the future.- damages must be inadequate.

Mareva or freezing orders Restrains Def from disposing of assets which may be required to satisfy the Pls claim = asset preservation order Against foreign and domestic Defs Mareva Compania Naviera SA v International Bulk Carriers SA [1975] UK Lease of a ship, had to pay monthly fees. Power of the court derives from Inherent powers to prevent abuse of process Statute Elements: Prima facie cause of action A good or arguable case in jurisdiction of the court Higher threshold than serious question to be tried Assets within the jurisdiction of the court E.g. Land, money, a bank account, cargo, a car Also assets held by 3rd Ps if Def has rights or control over assets Dissipation of assets Need real risk real evidence (more than a mere assertion or prima facie cause of action) Insolvency is insufficient; evidence that Def intends to leave jurisdiction is insufficient Fraud, previous history as debtor etc may be evidence of risk of dissipation Balance of convenience Is a discretionary remedy Weighing up: Strength of the Pls case And Risk that Def will dissipate assets Undertaking as to damages Note Def will be allowed normal living expenses etc. Def and 3rd Ps can apply to have order varied or dissolved

Anton piller orders A search order Def directed to allow the Pls representative to enter Defs premises and search for and seize evidence (documents, goods) supporting the Pls action/potential action Because Def may destroy documents or goods before trial and avoid justice through denial of discovery Surprise element is critical See description in Long v Specifier Publications (1998) NSWCA Mandatory order Also has negative characteristics Only granted in exceptional circumstances Compensatory and exemplary damages can be awarded Anton Piller KG v Manufacturing Process [1976] UK CA Representative or roving Anton Piller orders Order against named Def and other unnamed persons in common enterprise or with close ties Tony Blain t/a ACME Merchandising v Jamieson (1993) FCA Selling infringing goods, infringe copyright. Order, against the manufacturers and sellers. Power of court to grant: Inherent jurisdiction to preserve property Statutory Rules of court aimed at interim protection of property Elements: Strong prima facie case See Anton Piller v Manufacturing Process E.g. Copyright piracy, confidential information, patents Note draconian nature of the order Serious damage E.g. Loss of sales, potential losses through pirated goods Likely destruction of incriminating evidence Destroy or hide or remove from jurisdiction Order cannot give Pl licence for a fishing expedition Look at reputation of Def: Lock International plc v Beswick [1989] UK Undertakings by Pl Undertaking to explain order clearly to Def Def to be advised of rights, also to legal advice before order executed Also provide independent solicitor to Def with experience in AP orders written report to the court PMSI Group v Wilson [2003] NSWSCtttt Damages Privilege against self-incrimination is preserved Legal professional privilege is preserved For example of an order see Federal Court Practice Note 10 p 299 in textbook Courts discretion Equitable discretionary matters delay, acquiescence, unclean hands Pl to give full and frank disclosure of relevant matters at ex parte hearing Failure to comply by the Def Not a search warrant No forced entry permitted Consent still required But entry can only be refused until Def had legal advice Exposed to proceedings for contempt of court Contempt if evidence destroyed before access given Pl may be in contempt if: Documents and articles destroyed, or control abandoned Improper use of information obtained Unauthorised removal of material Pl to bring all material facts before the court otherwise order can be dissolved

DELIVERY UP Court order compelling the delivery up of documents or goods to the custody of the court under oath to be cancelled or destroyed under supervision You may disregard the portion on documents and only focus on infringing goods

Infringing goods Available where the manufacture or exploitation of the goods constitutes an infringement of a patent, a registered design or trade mark, or copyright; also for breach of confidence and passing off. Often accompanies an injunction to restrain infringement Is an equitable remedy - in exclusive equitable jurisdiction Vavasseur v Krupp (1878) UK Ch Div Copyright infringements: Can obtain an order for delivery up and destruction (in the equitable jurisdiction of the court) Copyright owner can bring an action in detinue for possession of infringing copies and devices ito Copyright Act 1968 (Cth) s 116(1) (1)(A) through this action the copyright owner can obtain possession of the goodsWhich goods? The actual infringing goods or products The moulds, dies, plates and other means of manufacture

RECTIFICATION Court can grant rectification if the contract does not reflect the agreement that was actually reached Where both parties agreed at the time of the contract but written document does not reflect agreement Purpose of the remedy is to make the document conform to the true agreement between the parties

Elements1. Written instrument2. Mistake by the parties as to contents or effect3. Intention of the parties as to what instrument should contain was common or concurrent at the time of execution4. Courts discretion should be exercised

Written instrument Written contracts, including deeds, insurance policies, bonds, documents conveying gifts etc Point of departure for the court is that the written agreement is the true agreement of the parties Not wills.

Mistake Traditional view Maralinga v Major Enterprises (1973) HCA Property up for auction, auctioneer made a representation that the vendor was offering finance. Someone bought the house, when the contract was signed no mention of financing, the purchaser noticed this and still signed. Held: At the time there was no mistake about the contract, as the contract did not contain the agreement. Granted in exceptional cases Only for common mistake (both parties had to be mistaken) Mistake about content or form Mistake about effect was insufficient Modern view will also correct mistakes about effect of document Commissioner of Stamp Duties NSW v Carlenka (1995) NSWCA A request that the Plaintiff should become an income beneficiary from the trust and through some mistake became a capital beneficiary, and therefore had to pay stamp duty. Held: Rectification granted due to: A Disconformity from the form or intention from the parties. Will provide rectification as remedy for unilateral mistake where defendant takes advantage unconscientiously of a mistake: Is it unconscionable for one party to take advantage of the other partys mistake Similar requirements for rescission Medsara Pty Ltd v Sande [2005] NSWCA six adjoining properties, and the purchaser was going to purchase them all, and the deal was to purchase all or none. Mistake as to the completion date, M new this and acted unconscionably. The people owning the houses asked for rectification. Held: Rectification granted, due to the unconscionable behaviour.

Intention Show evidence that the written instrument does not reflect true and concurrent intention of both parties at the time of execution of the contract Not time of negotiation Slee v Warke (1949) HCA Lease of a hotel, she had an option to buy the hotel with the provision to exercise the option with the first year, but it is not to be completed until after the first year. The contract was not actually contracting for this, and she was aware of this problem, and the hotel owner did not know. Held: no rectification as there was differing intentions at the time of signing the contract.

Antecedent contract unnecessary Previously it was necessary to show an antecedent (often oral) contract but approach now more liberal Joscelyne v Nissen [1976] UK CA J tenants, they ran a car rental business, where in arrears for rent, and daughter came to aid. She leased out husbands house, and they had a written agreement that daughter would take over the business, and in return she would pay the rent . She went to a lawyer who saw that daughter did not have to pay rent. Held: that the parties must have some sort of concurrent intention at the time of the signature. Not necessary to find a concluded and binding contract between the parties antecedent A common continuing intention is sufficient Provided there is some outward expression of accord subsequently rejected Intention must be actual not presumed There must be convincing proof that the written document does not reflect the intention

Discretion and defences Refused only in exceptional cases For delay, unclean hands, estoppel etc Also if after execution of the document 3rd parties have for value and without notice, obtained legal or equitable rights in property passed under the contract No rectification if: Contract is incapable of performance Contract has been fully performed Intention is illegal If right to rescission exists, and rescission is preferred by Pl

EQUITABLE COMPENSATION Compensation for equitable breaches Explained by CA in Canson Enterprises Ltd v Boughton & Co [1991] Canadian CA Exclusive jurisdiction E.g. Misapplication of trust assets Breach of trust: Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) HCA Had $500,000 on trust, breach of fiduciary duty.

EQUITABLE DAMAGES Concurrent and auxiliary jurisdiction From the NSW Supreme Court Act 1970 s 68: Damages in case of equitable relief Where the Court has power: To grant an injunction against the breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or To order the specific performance of any covenant, contract or agreement, The court may award damages to the party injured either in addition to or in substitution for the injunction or specific performance. Giller v Procopets [2008] VCA, Showed tapes of them having sex to friends and family.

Elements / requirements Does the court have jurisdiction for Specific Performance (SP) or Injunction? Can award equitable damages in the place of or in addition to SP or Injunction Question is could the court have awarded SP or Injunction? Not would the court order SP or Injunction Can be granted with or instead of SP or Injunction Discretionary not awarded as a matter of right

Discretion of the court Equitable damages are awarded in the discretion of the court, not as a matter of right A discretionary factor could preclude a court from granting - Specific relief (e.g. SP or I) AND Equitable damages E.g. Sayers v Collyer (1884) UK Ch Div Use of premises was used as a beer shop, which was contracted not to be used as. The plaintiff applied for an injunction, acquiescence. The plaintiff bought beer from the shop therefore he was not granted the injunction. (Can get neither!) Court can also award both Equitable damages can be awarded in addition to specific relief but duplication of relief to be avoided Grant v Dawkins [1973] UK Court can award damages instead of specific relief (SP or I) For instance when specific relief has become impossible during the litigation process (possible to award even if specific relief is still possible) Shelfer v City of London Electric Lighting Co [1895] English CA Installing additional lighting, which caused the residence to leave due to the unavailability. Prima facie right to obtain injunction. A good working rule (see next slide) Shelfer v City of London Electric Lighting Co [1895] English CA A good working rule damages can be awarded in substitution for an injunction, IF:1. Pls injury to legal rights is small2. Injury is capable of being estimated in money3. Injury can be adequately compensated by a small money payment4. Would be oppressive on the Def in the case to grant an injunction

Wrongful acts Equitable damages can be awarded for any wrongful act (LCA, and NSW Act) Torts Breaches of statutory prohibitions Wentworth v Woollarha Municipal Council (1982) HCA Work on a building were subject to restriction, contravened these restrictions, and the plaintiff argued it ruined his view. Matthews v ACP Publishing (1998) FCA Equitable wrongs Authorities recognise a jurisdiction for breach of confidence where the duty of confidence was purely equitable in nature Attorney-General v Guardian Newspapers Ltd (No 2) [1990] UK AC A book written by peter wright, and was an ex spy, there was a breach of confidence. The newspaper was third party to the breach, as it published extracts. Did not grant but said it was possible. Talbot v General TV Corporation [1980] VSC Giller v Procopets (2008) VSCA

Assessment of damages Follows CL principles of assessment in concurrent / auxiliary jurisdictions Jaggard v Sawyer [1995] English Court of Appeal Property development, and there was a colder sac. When developing they breached a covenant of the street. Given the equitable damages, determined what was the value of the loss. Also governed by the compensation principle Apply principles of: Remoteness in the concurrent/auxiliary jurisdiction Same date of assessment Qualification: Damages can be awarded under Lord Cairns Act even where damages at CL not available

RescissionReversal of a transaction so that each party is restored to its original position Exists both at CL (confined to contracts) and Equity (also available for gifts and other transactions) Basis - self-help

Termination v Rescission Termination Breach of Contract Innocent Party treats contract as no longer binding Further performance discharged Rights and obligations from partial execution remains Pay damages as if contract properly performed Rescission Formation of contract was affected by vitiating factor Contract voidable Choice to rescind (avoid) contract No rights and obligations under the contract Return to original position Rescission v termination (contd) They are mutually exclusive Covell and Lupton p 173 204 deals with how to establish these factors not the focus in this course Will be given/stated/blatantly obvious (then assume!)

Rescission often combined with other remedies: Restitution Damages for tort of deceit But no damages for breach of contract available

Elements of remedy of rescission Contract Vitiating factor in formation Misrepresentation Mistake Duress Undue influence Unconscionable dealing An election to rescind the contract Restitutio in integrum (restoration of parties to precontractual positions) is possible There are no bars to restitution

Election to rescind Doctrine of election: choose between terminate and claim damages and rescind and obtain restitution They are alternative and inconsistent remedies Once choice has been made - irrevocable Election to rescind voidable contract extinguishes right to enforce the contract, and/or claim damages Right to rescind extinguished by an affirmation of a voidable contract Election must be made in an unequivocal manner Need to be aware of the facts allowing rescission as well as the right to rescind But can be taken to have affirmed even if not aware of right to terminate Immediate rescission is not required provided no affirmation prior to rescission

Restitutio in integrum What does it mean? Restore completely; put parties in the position they were in before the contract (Brown v Smitt 1924 HCA property was improved, Is it possible? Not if property that passed has been destroyed or has deteriorated or has been acquired by bona fide 3rd party CL restitution strict restitution is required Eq restitution substantial restitution is required. Equity is less strict because of availability of ancillary remedies in equity to make adjustments between the parties Alati v Kruger (1955) HCA selling a fruit shop. Was restitution a possibility? In equity because equity can do what is practically just between the parties, can make allowances and restore parties substantially to the status quo OSullivan v Management Agency and Music Ltd [1985] 1 QB 428 (English Court of Appeal) O a musician, entered in a contract, was entered into under undue influence. Equitable rescission is a flexible remedy

Doing equity Equitable maxim He who seeks equity must do equity Court may order partial rescission or rescission subject to terms where that is necessary to achieve what is practically just for all parties Vadasz v Pioneer Concrete (SA) Ltd (1995) HCA Maguire v Makaronis (1997) HCA A breach of trust by firm of solicitors, that they would be the mortgagees of the property. They were entitled to rescind, did not mean that they no longer had to repay the loan. Bars to rescission

RESTITUTION 2 Meanings of the term restitution: A cause of action outside contract, tort or equity the textbook covers a number of causes of action E.g. Money had and received; quantum meruit These actions are to some extent based on unjust enrichment A remedy Basis disgorgement stripping the gain. Examples of restitution for wrongs: Mistaken payment (Cause of Action in restitution) Remedy = give the money back (restitution) Breach of confidence leading to profit (Cause of Action in equity) Possible remedy = give up profits made (restitution/ account of profits) Trespass leading to profit (Cause of Action in tort for trespass to land) Possible remedy = give up the profits made (restitution) Note other remedies would also be possible Restitution is essentially a profit-based or disgorgement remedy See also Account of Profits for equitable wrongs (week 11 lecture)

Quick overview of some restitutionary causes of action Money had and received Mistaken payments Payment made under duress Money paid and consideration failed totally (in a contract) Quantum meruit Claim for payment as much as it was worth or reasonable value of services received where contract cannot be enforced

Restitution for Torts In the law of torts, in a limited number of cases (e.g. Property wrongs), the Pl can sometimes choose to have damages in torts assessed on: A restitution basis Instead of a compensatory basis In general however torts damages are compensatory

Torts - Property wrongs Principle of restitution as a remedy: the Def must have been enriched at the expense of the Pl: Pl need not have lost anything, but a causal connection needed (primary meaning) Statement by authors Barker and Graham: causal connection between gain and injustice Def may have done wrong to the Pl (secondary meaning) Statement by author Birks Later view it is ultimately a matter for the law of each wrong to decide whether or not a gains-based remedy is available What are the practical considerations? The defence of change of position is available for the wrong of unjust enrichment, not for other wrongs Different wrongs have different times for actions under the Limitation of Actions Act, etc See also Mason CJ in obiter in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) HCA overpayment. Held: Found for the taxpayer. Requirement that the Pl be unjustly enriched at the expense of the Pl can mean that the enrichment is by doing wrong to or by subtraction from the Pl So restitution is a remedy that does not just flow from unjust enrichment To goods or land, both trespass and misuse Restitution can be based on rental (user principle); cost of waiver; profits made etc Olwell v Nye & Nissen Co (1946) (Supreme Court of Washington) use of egg washing machine, left behind after the sale of business. The new owners started using it. No wear and tear. No diminished value. Held: there was restitution, but there was no loss, the court looked at the saved expense, they received a benefit. The loss of deprivation of the right to exclusive use. Penarth Dock Engineering Pty Ltd v Pounds [1963] UK Sale of a pontoon, apart of the deal was that it was supposed to be removed immediately. 9 months later it was removed. LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) NSWSC Neighbouring property had construction going on, they wished to put scaffolding on land. The neighbour asked for $30,000. He rejected it, and continued to put scaffolding on. Remedy based on the saving Lack of further evidence amount awarded was based on originally quoted weekly fee (rental) Edwards v Lees Administrator (1936) Kentucky Court of Appeals Rental property, entitled to the loss rental. Remedy based on licence how much paid to waive the trespass What was the direct benefit that the D obtained from use of Ps property Here a share of the profits from the tours Ministry of Defence v Ashman [1993] English Court of Appeal Trespass to land two claims (mutually exclusive): Loss suffered as a consequence of trespass (= claim for damages) Value of the benefit that the occupier/trespasser received (= claim for restitution)` Value of the premises to the Def (mesne profits ) = user principle Normally the equivalent of the market rent for the period of the trespass, but on the particular facts less than the market rent what was the worth to the particular defendant ? The market value may be unjust in certain circumstances and court makes a subjective devaluation. Detinue trespass to goods Strand Electric & Engineering Co Ltd v Brisford Entertainments Ltd [1952] QB Court of Appeal retained switchboards, the plaintiff actually hired those switchboards out. Common thread = Pls entitlement to the value of the benefit to the Def without the Pl having to prove any loss

Breach of contract Example: Contract is breached but the P suffers no loss (e.g. can obtain the goods purchased under the C for less than the purchase price) Efficient breach theory Traditionally not available Attorney-General v Blake [2001] House of Lords B spy, published book. Did so in breach of his employment contract. Stripped profits. Not followed in Australia (yet) Hospitality Group v Australian Rugby Union [2001] Full Court of FCA Did not follow Blake.

Account of profits Equitable remedy Mostly for: In exclusive jurisdiction of equity Breach of trust Breach of fiduciary duty In auxiliary jurisdiction Breaches of intellectual property rights Is restitutionary in nature disgorge a benefit (an alternative to damages), and prevent unjust enrichment

Grounds for awarding account of profits Breach of trust and fiduciary duty Breach of confidence Infringement of intellectual property rights Other grounds (categories of cases not closed) Exclusive jurisdiction any type of equitable wrong Auxiliary no rules laid down, in reality limited to tort of passing off and infringement of intellectual property rights

Awarding account of profits FOR BREACH OF CONFIDENCE: Exclusive jurisdiction obligations of confidence purely equitable in nature If obligations are contractual in nature - not traditionally available as a remedy for breach of contract in auxiliary jurisdiction Attorney Gnl v Blake in UK an exception FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS Auxiliary jurisdiction (infringement of statutory duty) 3 considerations/ elements Normally ancillary relief to an injunction, but not otherwise (if injunction cannot be awarded no account of profits) Account limited to profits derived from Defs knowing infringement of Pls rights A discretionary award Discretionary factors apply See: Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) HCA Alleged infringement of intellectual property rights. The problem was at the time the infringement started and the time in got to trial, the trademark rights had expired, and the infringement also went onto a third party. Consequently, an injunction was not available, but stated that the account of profits were available. Additionally, it was held that there was no imputed knowledge, the profits could only be accounted from when they knew that they were infringing the rights.

Assessment EXCLUSIVE JURISDICTION Trustee or fiduciary to account for the entire profit made by reason of the breach (Consul Development v DPC Estates (1975) HCA)1. Is not penal or punitive2. An equitable allowance as remuneration for work and skill PROVIDED not dishonest Only granted in cases where award of account of profits could not have effect of encouraging trustees