#7156 - Remedies

… may receive a remedy in damages.
Compensatory damages
It is likely P will received compensatory damages, which aim to put the plaintiff in the position he or should would have been in had the tort not occurred. Here, P will be compensated for [the loss/injury], which was caused by D’s action.
Aggravated damages
Aggravated damages may be awarded here because D’s action not only caused [loss/injury] but The action was intentional D wilfully caused humiliation to P
Exemplary damages
Exemplary damages may be awarded, as the courts may seek to discourage action such as that taken by D because [Explain policy reasons ] eg Public safety To discourage abuse of the justice system (Grimshaw) Case: Grimshaw v Ford Motor Co: exemplary damages awarded to discourage others from making decisions based on economic reasons over human life.
Nominal damages
Only nominal damages may be awarded here, as P has suffered no loss.

Limitations for personal injury awards
P should be advised that the Wrongs Act 1958 (Vic) imposed limits on awards that may be made to plaintiffs in cases of personal injury. However, no limits will apply if D intended his/her act to cause death or injury, or the act for which the award is made was sexual assault or other sexual misconduct (Wrongs Act s 28C(2) and s 28LC(2)).

P should be advised that the Wrongs Act 1958 (Vic) imposed limits on awards that may be made to plaintiffs in cases of personal injury.

However, no limits will apply if D intended his/her act to cause death or injury, or the act for which the award is made was sexual assault or other sexual misconduct (Wrongs Act s 28C(2) and s 28LC(2)).

Damages will be awarded only if the damage caused by the nuisance was a reasonably foreseeable consequence of D’s act (Cambridge Water v Eastern Counties Leather Plc).

Compensatory damages are normally awarded.
However in suitable cases (such as where there is malice) aggravated or possibly exemplary damages may be awarded (Willoughby Municipal Council v Halstead), though there have been doubts whether they can be awarded (see, eg, Harris J in Oldham v Lawson).

Costs of abatement?

There is disagreement on whether the costs of abatement are available as damages.

Cases such as Corbett v Pallas and (in dicta) Proprietors Strata Plan No 14198 v Cowell indicate that such costs will be available, while Young v Wheeler and City of Richmond v Scantelbury suggestion they will not.
City of Richmond also held that the costs of preventing further damage could be included in an award of damages, but indicated that if the plaintiff had already carried out the work, the costs of abatement could not be claimed.

Accordingly, it is uncertain what the outcome would be in a claim for costs of abatement.

Damages for damage to property

Where the damage is done to property, it is assessed in the same way as other causes of action [to put the plaintiff in the position as though the tort had not occurred – ie money to fix damage].

Damage to amenities

Where the damage done is to amenities (sensibilities), the occupier ‘is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted’ (Lord Hoffman in Hunter v Canary Wharf).

The occupier can also claim for economic losses flowing from the disruption of business activities by the nuisance [lost profits etc] if D has also invaded a protected interest of P [eg where dust/fumes pollute P’s premises, driving away customers].

P may seek a remedy of damages. In [conversion/detinue], the damages will generally be the value of the goods that have been lost and the value of any consequential loss [plus an amount of damages for detention of the good in the case of detinue]. Conversion: the value of the good is assessed at the time of the conversion. Detinue: the value of the good is assessed at the time of the judgment (since detinue is an ongoing act until goods are returned) (General & Finance Facilities Ltd v Cook’s Cars) If D has increased the value of the good However, in [conversion (Munro v Willmot)/detinue (Greenwood v Bennett), if D made improvements to the good in the belief that he/she was the true owner, the measure of damages will be the value of the goods before the conversion/detinue.
Types of damages judgments in detinue
Three types of judgments may result (General & Finance Facilities Ltd v Cook’s Cars): The value of the chattel as assessed and damages for its detention Appropriate where the chattel is an ordinary article in commerce and damages are an adequate remedy. Substantially the same remedy for conversion but may result in a different amount due to the different dates of assessment of the value of the chattel. One amount incorporating both the value of the chattel and its damages will be given. The return of the chattel or recovery of its value as assessed and damages for its detention P can choose whether they want the return of the chattel or the recovery of its value The value of the chattel and the damages for detention are assessed as two separate amounts so that the plaintiff can choose which option they want (return of chattel plus damages for detention, or value of chattel plus damages for detention). The return of the chattel and damages for its detention. This is not an order often made, but it can be.

P may seek a remedy of damages. In [conversion/detinue], the damages will generally be the value of the goods that have been lost and the value of any consequential loss [plus an amount of damages for detention of the good in the case of detinue].

Conversion: the value of the good is assessed at the time of the conversion.
Detinue: the value of the good is assessed at the time of the judgment (since detinue is an ongoing act until goods are returned) (General & Finance Facilities Ltd v Cook’s Cars)

If D has increased the value of the good

However, in [conversion (Munro v Willmot)/detinue (Greenwood v Bennett), if D made improvements to the good in the belief that he/she was the true owner, the measure of damages will be the value of the goods before the conversion/detinue.

Types of damages judgments in detinue

Three types of judgments may result (General & Finance Facilities Ltd v Cook’s Cars):

The value of the chattel as assessed and damages for its detention

Appropriate where the chattel is an ordinary article in commerce and damages are an adequate remedy.
Substantially the same remedy for conversion but may result in a different amount due to the different dates of assessment of the value of the chattel.
One amount incorporating both the value of the chattel and its damages will be given.

The return of the chattel or recovery of its value as assessed and damages for its detention

P can choose whether they want the return of the chattel or the recovery of its value
The value of the chattel and the damages for detention are assessed as two separate amounts so that the plaintiff can choose which option they want (return of chattel plus damages for detention, or value of chattel plus damages for detention).

The return of the chattel and damages for its detention.

This is not an order often made, but it can be.

P may seek an order that the goods be returned. This may be granted by the courts only if the good is not an “ordinary article in commerce” (General Finance Facilities v Cook Cars). The article will be suitable for this remedy if it is somehow unique/difficult to replace.

If the article is an ordinary article in commerce, only compensatory damages will be awarded.

If D has increased the value of the good

If D has increased the value of the goods, the court may make it a condition of any order that the goods be returned that before the goods are returned, P must pay D the value of the improvements (Greenwood v Bennett).

The court will only make such an order where
- The work confers an incontrovertible benefit upon P and the work was done with the full and free acceptance of P; or
- D genuinely thought he/she was the true owner of the chattel at the time at which the improvements were made (Greenwood v Bennett).

P may be awarded an injunction…
… restraining [the action to be restrained]. … requiring D to [action wished to be performed]. An injunction (eg restraining publication of film) can only be granted against a party if a substantive cause of action (eg trespass in obtaining the film) can be brought against that party (ABC v Lenah Game Meats).

… restraining [the action to be restrained].

… requiring D to [action wished to be performed].

An injunction (eg restraining publication of film) can only be granted against a party if a substantive cause of action (eg trespass in obtaining the film) can be brought against that party (ABC v Lenah Game Meats).

An occupier of land may take reasonable steps to abate a nuisance or threatened nuisance.

Eg lopping branches or tree roots
May take this action even without notice to the neighbour
If abating the nuisance requires entry onto the neighbour’s land, notice must be given to the neighbour to allow them to take the necessary steps, otherwise entry will be a trespass
- Entry without notice to abate the nuisance may be permitted in cases of emergency

Note there is some authority that says abatement is only an option in cases of emergency even where entry onto neighbouring land is not required (Burton v Winters).

See general damages section and damages for nuisance section.

An injunction restraining continuance of the nuisance by D may be sought in this circumstance. Injunctions are discretionary, and courts will consider a variety of factors in granting or denying an injunction.

Miller v Jackson shows that courts may consider P’s neuroticism, public interest, the obviousness of the nuisance before moving in (‘coming to the nuisance’), and D’s difficulty in relocating the nuisance-causing activity.
However public interest/social benefit is not...

#7156 - Remedies - Torts A

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