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LLB#300## REMEDIES#&#CIVIL#PROCEDURE# # wWeek 1 – Readings: Chapter 1: 1.1-1.10 Chapter 2: 2.1-2.7; 2.57- 2.60  Chapter 3: 3.1-3.5; 3.36- 3.40 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 (1)– Introduction [1.1] Scope of the law of remedies (3) -! -! -! -! -! -! -! -! -!

Study of the law of remedies is a recent phenomena. Traditionally it was treated as ‘addenda’ to the substaintive subjects of contract, torts and equity. 20th century – remedial law matured into a subject. England’s first scholarly work devoted to common law, statutory and equitable remedies was ‘ F H Lawsons’ Remedies of English Law (1972). Americas first remedies casebook published in 1910. Australia’s first scholarly work was Bruce Kercher’s and Michael Noone’s text Remedies (1983). First Australian casebook by same authors – Remedies Commentary and Materials (1988). Generally agreed core subjects incl. damages, injunctions and specific performance. Given the absence of any judicial definition of remedies, there are atleast 4 distinctions to help define the law of remedies.

[1.2] Primary and Secondary Rights (4) -! Difference exists between a right and remedy. Helps to find meaning of remedy law somewhat. -! Oxford English Dictionary o! Remedy: Derives from the latin word ‘remedium’ meaning, ‘medicine, means of relief’. -! Remedies in law are often thought of in a practical sense, as the medicine or means of relief for the violation of a legal right, thus, a ‘cause of action’. -! Letang v Cooper, Diplock LJ: A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. -! Impossible to say how many meanings the word ‘remedy’ has in law. Reason for this is as Professor Birks states, ‘it relies on the metaphorical invocation of the relationship between illness and medicine. To remedy is to cure, heal or alleviate an illness or some troublesome condition. Anything can be described as a remedy if it can be represented as making some bad condition better’. [1.3] -! Dishoctomy between rights and remedies is that rmedies are simply another species of rights (John Austin recognised this in the 19th century, when he drew a distinction between primary/secondary rights). o! Primary: Do not arise from injuries or from violations of other rights and duties. §฀! Correspond with causes of actions. o! Secondary: Arise from violations of other rights and duties or from injuries, delicts [torts] or offences. §฀! Correspond with remedies. o! Austin acknowledged the distinction is illogical – ‘ a primary right or duty is not of itself a right or duty, without the secondary right or duty by which it is sustained; and e converso. -! Ubi jus ibi remedium: Where there is a right there is a remedy. -! Austin states there is a need for a distinction between rights/remedies due to o! “the clearness and compactness which results from the seperation. The cause of the greater compactness is that the same remedial process is often applicable, not merely to this particular right, but to a great variety of classes of rights; and, therefore, if it be separated from the rights to which it is applicable, it may be disposed of at once; otherwise it must be frequently repeated. [1.4] -! The purpose of drawing the distinction is not because it should be rigidly adhered to, but because it helps with understanding and describing the law. [1.5] -! Austin’s distinction between primary and secondary rights is reflected in the judgment of Lord Diplock in Photo Production Ltd v Securicor Transport Ltd – ‘Every failure to perform a primary obligation is a breach of contract. The secondary obligation on the part of the contract breaker to which it gives rise by implication of the common law is to pay monetary compensation to the other party for the loss sustained by him in consequence of the breach’. -! His Lordship left aside ‘those comparatively rare cases in which the court is able to enforce a primary obligation by decreeing specific performance of it’. [1.6] (6-7)

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LLB#300## REMEDIES#&#CIVIL#PROCEDURE# # -! Distinction between primary and secondary rights works well in defining the boundaries of the law of remedies. But, it does have its limits in explaining the relationship between rights and remedies. -! The clearest illustration of this integration of rights and remedies is torts where damage is an essential component of the cause of action, such as malicious falsehood, passing off and, most notably, the tort of negligence. -! Fairchild v Glenhaven Funeral Services Ltd, Lord Hoffmann, in considering the principles that govern a breach of duty and causation in negligence, said: o! Imposition of a duty of care in respect of particular conduct depends upon whether it is just and reasonable to impose it. o! Over vast areas of conduct one can generalise about the circumstances in which it is considered just and reasonable to impose a duty of care: Donoghue (or M’Alister) v Stevenson”. o! But there are situations where such generalisation cannot be fairly applied and it is necessary to return to the underlying principle and inquire whether it would be just and reasonable to impose liability and what its natures and extent should be. o! The same is true of causation. [1.7] -! ‘Academic cosmos’ has drawn to describe the law of remedies by reference to two schools of thought: o! Monist: reduces everything to a single governing principle. o! Dualist: to two independent and distinct principles. o! Pluralism: explains reality by two or more principles. -! Monist supposedly holds the ‘older’ traditional view that there is no right without a remedy; the remedy is ‘the same thing as the right, looked at from the other end’, a mirror image’; they have no independent existence and therefore there is complete congruence of right and remedy’. -! Dualist: accepts that there is a distinction between an antecedent right and the remedy awarded by the court and that the remedy is not simply the right viewed from the other end. Embraces the notion that the court can fashion the remedy or choose ‘from the basket of all potential remedies the contextspecific one that is most appropriate in the circumstances’. At this stage the court may consider matters that were absent when deciding whether the plaintiff has a right or a cause of action. -! Adv/Dis-adv of both: o! Monist mirror image is too simplistic. Fails to explain remedy-specific considerations like equitable discretion and the process of awarding exemplary damages in order to punish, deter and vindicate. o! Dualist struggles to escape the essential ‘unbreakable relationship’ between the right and the remedy. -! Waddams notes that in ‘one sense every monist is a dualist, in that the right is initially defined without regard to the remedy, which is therefore conceptually separated from the definition of the right’. -! Hybrid school of thinking has developed which straddles the two by accepting that there is both a ‘strong’ relationship between the right and the remedy and that different considerations apply when a court decides on the appropriate remedy. -! Dualist & Hybridists are regularly identifed, but those who advocate monism are on thin ground. -! Birks was a monist because of his statement that damages is ‘the same thing as the right looked at from the other end’. But Birks regarded the word ‘remedy’ as ambiguous, with many meanings and a ‘slippery nature’ and if he was a monist, it has been described as a ‘phase’. -! Was Austin a monist because he acknowledged that the distinction between rights and remedies is illogical? This fits the notion that there is an‘unbreakable relationship’ between the right and the remedy. -! But was Austin also a dualist because he was drawn to the clearness and compactness which results from the separation’ of primary rights and remedies? We will never know, but these questions highlight the difficulty in describing the law of remedies by reference to monism, dualism or something in between. [1.8] Remedies and Procedure (9) -! Distinction between remedies and court procedure, assists in defining the law of remedies. -! High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc - the distinction turns upon the difference between ‘ends’ and ‘means’ -! Remedies the ‘ends’ which the administration of justice seeks to achieve. -! Procedure: the ‘means’ for achieving those ends. -! Unfortunately, the distinction is difficult to apply in practice, and the truth is that a significant part of the law of remedies is procedural in nature. That is particularly true of the law concerning interlocutory injunctions where court procedure has been fertile ground for the development of new remedies including superinjunctions, anonymised injunctions, freezing orders and search orders. [1.9] Civil and Criminal Law (9-10) -! The third distinction that assists in defining the law of remedies is the difference between civil / criminal law. -! Except in so far as many crimes are also torts, we have confined our discussion to the civil law. Even punishment, deterrence and vindication are not confined to the criminal law. -! Exemplary damages in tort and ‘additional’ damages under federal intellectual property statutes are awarded to punish,

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LLB#300## REMEDIES#&#CIVIL#PROCEDURE# # deter and vindicate rather than compensate. However, overall, exemplary damages remain an exceptional remedy. -! They have been severely restricted in tort by statutory intervention. They are not available for misleading and deceptive conduct under the Australian Consumer Law, and not available and equity. -! Although some equitable remedies exhibit elements that are designed to punish, deter and vindicate, the role of equity in Australia is dominated by the view that ‘equity and penalty are strangers’. -! This is despite the persuasive dissent of Mason P in Harris v Digital Pulse Ltd and the availability of exemplary damages for equitable wrongs in New Zealand and Canada. [1.10] Self-Help and Judicial Remedies (10) -! Final distinction is between self-help remedies and judicial remedies administered by the courts. -! Self-help remedies: abatement of nuisance, eviction of trespassers, and, most importantly, termination of contracts for breach. -! The law concerning rescission of contracts poses a difficulty because the subject straddles the divide between self-help and judicial remedies. -! Recession – the act of rescinding parting. -! Role of court is ‘to adjudicate upon the validity of a purported disaffirmance … and, if it is valid, to give effect to it and make appropriate consequential orders’. (2) Chapter 2 - 2.1-2.7; 2.57- 2.60 - Damages in Tort [2.1] Introduction -! Damages: are an award of money by the court designed to compensate the plaintiff for injuries caused by the defendant’s wrong. -! Damages in tort are intended to place the plaintiff, so far as money can, in the position he or she would have occupied had the tort not been comitted.(Livingstone v Rawyards Coal Co) -! Exception to this ‘cornerstone of tort law’ is where exemplary damages are awarded. Here the principle is not one of compensation but punishment and deterrence. -! The main statutory exceptions are the limits placed on the amounts that can be awarded as compensatory damages under the civil liability, motor accident and workers’ compensation legislation. But even under these reforms ‘regard must still be had to the existing common law’. [2.2] -! At the ‘frontiers of tortious liability’ there is continuing uncertainty as to what is ‘actionable damage’ or an ‘actionable injury’. -! Some injuries, even if reasonably foreseeable, might not give rise to a claim for damages. -! Three examples considered are the 1.! loss of a chance of a better outcome in medical negligence cases (see 2.31-2.33) 2.! the negligent infliction of pure psychiatric harm (see 2.49-2.52) 3.! pure economic loss: see 2.53-2.56 -! High Court considered questions about the nature of actionable damage in the ‘wrongful birth’ and ‘wrongful life’ claims in Cattanach v Melchior and Harriton v Stephens. -! Cattanach: o! The wrongful birth issue in Cattanach was whether the cost of rasing a healthy but unplanned child conceived as a consequence of a doctor’s negligence is actionable damage. o! A bare majority held that it was and then several jurisdictions immediately passed laws to neutralise effect of this decision.” It remains an actionable injury but the amount that can be awarded as compensation has been curtailed. -! Harriton v Stephens: o! 6:1 majority of the High Court refused to recognise ‘wrongful life’ as an actionable injury. o! Defendant, a doctor, failed to diagnose rubella in the mother during pregnancy and she therefore lost an opportunity to terminate her pregnancy. o! The daughter, Alexia Hard ton, was born with severe lifelong disabilities including blindness, deafness, mental retardation and spasticity. She claimed special damages for her past and future medical costs and general damages for pain and suffering. o! Studdert J, found against her and so did the New South Wales Court of Appeal and the High Court. o! In the High Court, Crennan J in majority held: A comparison between a life with disabilities and non-existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. o! Kirby J sole dissenting judge. Should be labelled as wrongful suffering, as the appelants life exists and will continue to exist, but someone should pay for the suffering of the respondents carelessness. States that general principles of negligence apply in the appelants favour. [2.3]

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LLB#300## REMEDIES#&#CIVIL#PROCEDURE# # -! Statutes play an important role in shaping the availability and scope of civil remedies. I.e. Civil liability statutes. -! High cost of private liability insurance in 20th century, provoked investigation into ways to limit personal injury litigation and damages awards. The recommendations of the Report made changes to personal injury claims and tort of negligence. [2.4] -! Focus of the chapter is on principles of compensatory damages in tort, esp negligence. -! Many of the principles guiding the award of damages in contract and tort are similar; the main elements same. -! Commonwealth v Amann Aviation Pty Ltd, Deane J introduced the topic of damages in contract: “While the general principle is the same in both contract and tort, the rules governing its application in the two areas may differ in some circumstances. Those differences are largely the result of historical considerations in that they reflect distinctions between causes of action rather than reasoned development of exegesis of the law. i.e ‘within the contemplation of the parties’ to ‘reasonably foreseeable’. -! Astley v Austrust a professional negligence case concerning a solicitor’s concurrent liability in tort and contract, it was the differences between the actions that dominated the High Court’s reasoning, rather than the similarities. The court warned that it is not ‘always sound’ to ‘assimilate’ various causes of action, particularly those in contract and tort. [2.5] Elements (19) -! If the plaintiff is to receive compensatory damages in tort, the court must find that: a)! the plaintiff has a tortious cause of action against the defendant; b)! the defendant’s tort has in fact caused the plaintiffs loss; c)! the plaintiffs loss is not too remote; and d)! the plaintiffhas not breached his or her ‘duty’ to mitigate unnecessary loss. -! The notion that a failure to satisfy any one of them will be fatal to the plaintiffs case. [2.6] -! At common law and civil liability statutes, the plaintiff bears the burden of proving the first three elements with ‘reasonable certainty’ as opposed to ‘absolute certainty’. -! Certainty is not a separate element, but refers to the standard or standards of proof applicable to each element. -! Generally, the plaintiffs cause of action must be proved on the balance of probabilities. (Sellars v Adelaide Petroleum NL (1994) -! This does not mean this standard is to be applied rigidly to each element in damages. -! Where the loss cannot be easily measured or calculated, such as where damages are presumed or assessed ‘at large’ in defamation and passing off, a different approach is used in assessing the amount of the loss. -! A different approach may also develop in unusual cases involving an ‘evidential gap’. [2.7] -! Last element mitigation, the defendant bears the burden of proving that the plaintiff has breach his/her duty to mitgate loss flowing from the defendant’s wrong. (Watts v Rake (1960) -! Put another way, the plaintiff is presumed to have taken reasonable steps towards mitigating unnecessary loss unless the defendant proves to the contrary. The word ‘duty’ in this context should be treated with caution, since, unlike other duties, if breached, it does not result in a cause of action, nor is the plaintiff regarded as being contributorily negligent. -! Breach of the duty merely reduces the amount of damages payable. -! Defendant bears the burden of proof where it is alleged that the plaintiff is guilty of contributory negligence. [2.57] Mitigation (65) -! There is a duty on the plaintiff to mitigate losses flowing from the defendant’s wrong. (s 136(1) MAC (1999) -! For example, in a personal injury claim the plaintiff may have refused medical treatment which would have alleviated the harm. If such refusal is unreasonable, the breach of the duty to mitigate loss is not actionable, nor does it lead to a finding of contributory negligence, but the court may reduce the damages payable. -! Onus of proving that the plaintiff has failed to attempt reasonable mitigation is on the defendant, (Watts v Rake), who should plead this in defence or give notice to the plaintiff before the trial. (Geest plc v Lansiquot) -! Where the plaintiff has attempted reasonable mitigation the cost of so doing recoverable as damages, even if the attempt increased the loss.”(Gardner v R [1933]). [2.58] (66) -! Reasonable mitigation, the court considers what a reasonabk person in the plaintiffs circumstances would have done. -! Glavonjic v Foster, the P suffered a brain injury in a car accident and refused to undergo surgery. o! Gobbo J Test: “whether a reasonable man in the circumstances as they existed for the plaintiff and subject to the various factors such as difficulty of understanding and the plaintiffs medical history and condition that affected the plaintiff, would have refused treatment.” o! Finding: Applying the broader test, I am of the view that the defendants have not discharged the onus which is upon them of showing that it was unreasonable of the plaintiff to refuse the surgery proposed. o! Approved by the Full court of the Supreme Court of Vic in Karabostos v Plastex Industries Pty Ltd.

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LLB#300## REMEDIES#&#CIVIL#PROCEDURE# # -! Alcoa Minerals of Jamaica Lnc v Broderick o! Where emissions from the appellant’s smelting plant injured the respondent’s health & corroded the galvanised zinc roof on his house. Respondent fixed roof but when it happened again, couldnt afford the repairs. o! Finding: The Privy Council found that the respondent’s refusal to undertake further repairs was reasonable in ight of his own personal circumstances and impecuniosity. -! It is also unreasonable in negligent sterilisation and contraception cases to expect a mother to mitigate damages by either abortion or adoption. [2.59] -! If in mitigating the loss the plaintiff benefits from the defendant’s breach this will also be taken into account in the damages assessment. -! Hoad v Scone Motors Pty Ltd o! D negligently caused a fire which destroyed P’s 7yr old tractor. o! P bought a new tractor as no second-hand tractors were available. o! The intention of P was to sell this tractor 18 months after its purchase because he wanted to give up farming. After discussing the authorities in contract NSW Court of Appeal held that damages were to be reduced because of the superior performance of the new tractor and its higher resale value. [2.60] -! While in most torts the duty to mitigate invariably falls upon the plaintiff, in defamation the defendant may mitigate damages flowing frorr the defamation by a...