Measuring Damages in the Law of Obligations

Sirko Harder is a Senior Lecturer at Monash University, Melbourne.

• 1: Introduction I The Law of Obligations II The Law of Damages III Desirability of a Harmonised Measure of Damages IV Possibility of a Harmonised Measure of Damages V The Methodology Adopted in this Book Part 1: Remoteness of Damage 2: The Present Remoteness Test in Tort I Terminology II The Foreseeability Criterion in Negligence III Damage Versus Risk IV Degree of Foresight Required V The'Thin Skull' Rule VI The 'Scope of the Duty' Concept VII Torts other than Negligence 3: The Present Remoteness Test in Contract I Hadley v Baxendale II Victoria Laundry III The Heron II IV Parsons V SAAMCO VI Brown v KMR Services Ltd VII Jackson v Royal Bank of Scotland plc VIII The Achilleas IX Conclusion 4: A Uniform Remoteness Test throughout the Common Law I Contract and Tort Compared II Reforming both Contract and Tort III Reforming Tort Only IV Aligning Contract with Tort A The Fairness Argument B The Efficiency Argument C Objections to the Efficiency Argument i Prohibitive Costs ii Monopoly Situations iii Strategic Dilemma for Reliable Carriers iv Possibility of Menu D Preventing Unreasonable Reliance upon Performance E Contractual Liability is Generally Strict F Conclusion 5: Remoteness of Damage in Equity I Misapplication of Trust Property II Breach of an Equitable Duty of Care and Skill III Breach of Fiduciary Duty Part 2: Non-Pecuniary Loss 6: Non-Pecuniary Loss in Tort I Loss Resulting from Personal Injury II Physical Inconvenience or Discomfort III Loss of Reputation IV Mental Distress V Bereavement 7: Non-Pecuniary Loss in Contract I Overview of the Present Law II The General Bar to Compensation III The Exception for Personal Injury IV The Exception for Physical Inconvenience V The'Object of the Contract' Exception VI Loss of Reputation VII Need for Reform VIII Defensibility of the General Bar to Compensation A Avoiding Punishment B Avoiding Excessive Awards C General Remoteness of Non-Pecuniary Loss D Assumption of Risk E Difficult Assessment F Lower Cost of Contracting G Avoiding a Flood of Claims H Avoiding Bogus Claims IX Way of Reform 8: Non-Pecuniary Loss in Equity I BreachofConfidence in Its Core Meaning II Breach of Confidence in Its Extended Meaning ('Breach of Privacy') III Other Equitable Wrongs Part 3: Contributory Negligence 9: Contributory Negligence in Tort I The Position Apart From the1945 Act II The Ambit of the 1945 Act III Causation IV The Claimant's Fault V Damage VI Apportionment 10: Contributory Negligence in Contract I The Position apart from the 1945 Act II The Impact of the 1945 Act-Overview III Breach of a Duty of Care Co-Extensive in Contract and Tort IV Breach of a Purely Contractual Duty of Care V Strict Contractual Liability-The Present Law VI Need for Apportionment in Cases of Strict Liability A Resorting to Causation Doctrine B Resorting to Remoteness Doctrine C Resorting to Mitigation Doctrine VII Defensibility of Denying Apportionment in Cases of Strict Liability A No Duty to Supervise the Defendant B Distribution of Blame is Difficult C Uncertainty D Inequalities of Bargaining Power VIII Way of Reform 11: Contributory Negligence in Equity Part 4: Gain-Based Relief 12: The Present Law of 'Restitution forWrongs' I Terminology II The Inclusion of Hypothetical-Fee Awards III Equity A Breach of Fiduciary Duty B BreachofConfidence Including Breach of Privacy IV Tort A Historical Development B Wrongful Interference with Goods C Trespass to Land D Intellectual Property Wrongs E Nuisance F Deceit and Fraud V Contract A Hypothetical-Fee Award ('Wrotham Park Damages') B Account of Profits ('Blake Damages') 13: The Proper Scope of 'Restitution for Wrongs' I Existing Theories A Birks B Edelman C Friedmann D Jackman E Jaffey F Tettenborn G Weinrib H Worthington II The Significance of Exclusive Entitlements III Exclusive Entitlements Erga Omnes A Tangible and Intangible Property B Bodily Integrity C Reputation D Informational Rights IV Exclusive Entitlements Inter Partes A Contractual Right to Have Property Transferred i Land and Intangible Property ii Specific Chattel iii Generic Goods B Contractual Right to Be Treated As the Owner of Certain Property C Contractual Right to Someone Else's 'Labour Power'? D Right to the Loyalty of One's Fiduciary V Situations in Which 'Restitution for Wrongs' is Inappropriate A Deceit B Skimped Contractual Performance VI Exclusive-Entitlement Theory and Present Law Compared Part 5: Exemplary Damages 14: The Present Law of Exemplary Damages I Terminology II Rookes v Barnard III Abuse of Power by Civil Servants A Conduct Required B Status of the Defendant C Criticism IV Profit-Seeking Behaviour A Fields of Application B Criticism V Statutory Authorisation VI The 'Cause of Action' Test VII Exemplary Damages in Contract VIII Exemplary Damages in Equity IX Need for Reform 15: Objective of Exemplary Damages I Penalising Reprehensible Behaviour II Fostering Efficient Deterrence A Correction for Undercompensation B Correction for Underenforcement C Correction for Court Errors D Offsetting Illicit Benefits and Exceptional Costs E Encouraging Negotiations about the Use of Rights F Conclusion 16: Defensibility of Confining Exemplary Damages to Tort I Defensibility of Banning Exemplary Damages from Contract A Theory of Efficient Breach B Objections to the Theory of Efficient Breach C Relevance of the Theory of Efficient Breach D Inducement of Breach E Cost of Contracting F Crucial Differences between Contract and Tort G Conclusion II Defensibility of Banning Exemplary Damages from Equity A Is Punishment a Traditional Objective of Equity? B Should Exemplary Damages be Available in Equity? 17: The Abolition or Retention of Exemplary Damages I The Division between Civil Law and Criminal Law A Attack on Exemplary Damages B Defence of Exemplary Damages C Conclusion II Policy Arguments against Exemplary Damages A Uncertainty as to Availability and Amount B Ineffectiveness of Predictable Awards C Incentive for Bogus Claims III Policy Arguments in Favour of Exemplary Damages A Appeasing the Victim B Possibility of Vicarious Liability IV Need for Exemplary Damages A The Long-Standing Practice of Exemplary Awards B The Law Commission's Ten Examples C Comparative View V Conclusion 18: Conclusion Bibliography Index