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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Damages - From: 1991 To: 1991

This page lists 32 cases, and was prepared on 27 May 2018.

 
F v Wirral Metropolitan Borough Council [1991] Fam 69; [1991] 2 WLR 1132
1991
CA
Ralph Gibson LJ
Children, Damages
The local authority took children into care, reassuring the parents that they would be returned. They were not. Held: There was no valid claim for damages for the distress arising from the loss of the company of a child. There was no cause of action in negligence. The authority was working within a statutory framework.
Ralph Gibson LJ said: "If there should be deliberate injury to a parent with reference to care or custody of her child, whether by deceit or by misfeasance in public office, it would not follow that, because there is no cause of action in negligence for loss of parental right, damages could not be recovered for such deliberate injury and its consequences."
Children Act 1948
1 Citers


 
Hevican v Ruane [1991] 3 All ER 65; [1991] 141 New LJ 235
1991
QBD
Mantell J
Damages, Personal Injury
The plaintiff's son died in a car crash, and she claimed damages for nervous shock. Held: Given the relationship, the psychological illness was reasonably foreseeable, and recoverable.
1 Cites

1 Citers


 
Stanley v Saddique [1992] QB 1; [1991] CLY 1307
1991


Damages

1 Citers


 
O'Laoire v Jackel International Limited (No 2) [1991] 1 ICR 718; [1991] IRLR 170 CA
1991
CA
Lord Justice Browne Wilkinson
Employment, Damages
On taking up employment the plaintiff was told he would later be appointed managing director. His employment was terminated, and he sought damages. Held: The defendant was estopped from denying it would appoint him managing director, since this was found to have been an implied term of his contract.
It was settled law that there was no claim for injury to feelings. The compensatory award received through a claim in the industrial tribunal should not be set off against the award, since the tribunal had not particularised the award under any one or more heads of damages.
Sir Nicholas Browne-Wilkinson stated that "it is well established that there can be no estoppel arising out of an order or judgment given in excess of jurisdiction"
Employment Protection (Consolidation) Act 1978 69(1)(3) 75(1)(3)
1 Citers


 
Scally v Southern Health and Social Services Board [1991] 4 All ER 563; [1992] 1 AC 294; [1991] IRLR 525
1991
HL
Lord Bridge
Northern Ireland, Health Professions, Contract, Damages, Employment
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to purchase additional superannuation contributions. They had not been told of the rights and had failed to exercise them. They claimed damages for breach of contract and of statutory duty. Held: The term was valuable and not negotiated with the plaintiffs. The defendants had a duty to bring the new rights to their attention. "If a duty of the kind in question is not inherent in the contractual relationship, I do not see how it could possibly be derived from the tort of negligence." The claims were not time barred because the obligation to inform had been continuing.
Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965 4(1) 5 - Health Services (Superannuation) Regulations (Northern Ireland) 1962 (1962 (NI) 237) - Health Services (Superannuation) (Amendment) (Number 3) Regulations (Northern Ireland) 1974 (1974 (NI) 327)
1 Citers


 
Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370; [1991] 2 WLR 513; [1990] 1 All ER 335
1991
HL
Lord Bridge of Harwich, Lord Donaldson
Damages, Contempt of Court
Damages were awarded for a breach of statutory duty where the claimant had suffered loss or damage by reason of the breach. The publication at issue went beyond reporting and "it reached deeply into the substance of the matter which the court had closed its doors to consider". A mental health review tribunal is a court to which the law of contempt applies. As to section 19: "this definition must be intended to reflect the common law concept of what is a "court" for the purposes of the common law jurisdiction of the courts in relation to contempt of court".
Lord Donaldson gave two reasons why injunctions to restrain publication are rarely given: "Where the contempt would consist of impeding or prejudicing the course of justice, it will rarely be appropriate for two reasons . . The second is that it is the wise and settled practice of the courts not to grant injunctions restraining the commission of a criminal act (and contempt of court is a criminal or quasi-criminal act) unless the penalties available under the criminal law have proved to be inadequate to deter the commission of the offences. Unlawful street trading and breaches of the provisions of the Shops Acts are well-known examples."
Contempt of Court Act 1981 19 - Administration of Justice Act 1960 12
1 Cites

1 Citers


 
Wilson v Ministry of Defence [1991] ICR 595; [1991] 1 All ER 638
1991

Scott Baker J
Employment, Personal Injury, Damages
The court was asked to look at three events envisaged, and to consider whether, if they did occur, they should be described as constituting serious deterioration. Held: "First of all the development of arthritis to the extent that surgery is required. Osteoarthritis is a progressive condition. It is very common in cases where damage is suffered to an articular surface. I am not satisfied that it is established that deterioration to the point of surgery being required falls within the definition of serious deterioration in the circumstances of this case. It seems to me to be simply an aspect of a progression of this particular disease.
Secondly, development of arthritis to the extent that he changes employment. Again, it seems to me very much the same approach can be applied as with regard to the requirement of surgery and I do not think that deterioration triggering a change of employment can properly be described as serious within the meaning of the section.
Thirdly, that the plaintiff suffers a further injury in the nature of further damage to the ankle or elsewhere."
The court rejected the Claimant's approach: "The question then arises as to which cases are appropriate for a provisional damages award and which are not. I deal with this because, although I formed the view that there was no serious deterioration envisaged in this case, that was not a matter that I found entirely easy and indeed there are some matters that may more properly be dealt with under the heading of "discretion" rather than taking into account the circumstances of the case in looking at whether or not the section was complied with.
The general rule in English law is that damages are assessed on a once-and-for-all basis. Section 32A of the Supreme Court Act 1981 creates a valuable statutory exception. In my judgment, the section envisages a clear and severable risk rather than a continuing deterioration, as is the typical osteoarthritic picture.
In my judgment, many disabilities follow a developing pattern in which the precise results cannot be foreseen. Within a general band this or that may or may not occur. Such are not the cases for provisional damages. The courts have to do their best to make an award in the light of a broad medical prognosis.
In my judgment, there should be some clear-cut event which, if it occurs, triggers an entitlement to further compensation.
Argument was addressed to the question of whether or not the discretion should be exercised. No doubt the courts will work out over a period of time the various factors that it may be relevant to take into account in the exercise of such a discretion. In my judgment, the important factors in this case are, first, to look and see whether, in respect of any of the three events outlined by Mr. Langstaff, there can truly be said to be a clear-cut identifiable threshold. In my judgment, there cannot.
I also take into account the degree of risk and the consequences of the risk. They do not seem to me to be such as to place this case into the category where there is a great demand that there ought to be only a provisional damages award at this stage.
In a sense, this point leads into the third aspect that I regard as particularly relevant to the exercise of this discretion, and that is weighing up the possibilities of doing justice by a once-and-for-all assessment against the possibility of doing better justice by reserving the plaintiff's right to return.
It seems to me that the case falls within the general run of cases where there are uncertainties as far as the future is concerned. Nobody can look into a crystal ball and see precisely how the condition of the plaintiff's ankle will develop, but I think that the uncertainties are such that they can all properly be taken into account in making a once-and-for-all assessment of damages today. My conclusion therefore is that this is not an appropriate case in which to exercise discretion in favour of a provisional damages order."
1 Citers


 
Sutcliffe v Pressdram Ltd [1991] 1 QB 153
1991
CA
Lord Donaldson MR
Defamation, Damages
A £600,000 compensatory award was set aside by the Court of Appeal on the grounds that it must have been made on the wrong basis, almost certainly so as to punish Private Eye. The Court of Appeal could not substitute its own award for that of a jury. Juries in defamation cases should be reminded of the purchasing power of money when advised on the level of an award. A jury could be guided "in terms which will assist them to appreciate the real value of large sums . . the Judge could, I think, properly invite them to consider what the result would be in terms of weekly, monthly or annual income if the money were invested in a building society deposit account without touching the capital sum awarded or, if they have in mind smaller sums, to consider what they could buy with it."
1 Citers


 
Kemp Properties (UK) Ltd v Dentsply Research and Development Corporation [1991] 2 EGLR 197
1991

Bingham LJ
Torts - Other, Damages
The measure of damages is the same as for fraudulent misrepresentation i.e. all loss caused by the plaintiff having been induced to enter into the contract.
Misrepresentation Act 1967 2(1)
1 Citers


 
East v Maurer [1991] 1 WLR 461; [1990] EWCA Civ 6; [1991] 2 All ER 733
1991
CA
Mustill LJ, Butler-Sloss LJ, Beldam LJ
Damages, Torts - Other
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a success of the business but eventually sold it at a loss. The defendant appealed against the award of damages for deceit. Held: The plaintiffs had established that they had suffered a loss due to the defendants' misrepresentation which arose from their inability to earn the profits in the business, and "I would therefore reject the submission . . that loss of profits is not a recoverable head of damage in cases of this kind." However the amount of damages was recalculated.
1 Cites

1 Citers

[ Bailii ]
 
IBL Ltd v Coussens [1991] 2 All ER 133
1991


Damages, Torts - Other
Flexibility in the date of breach rule applies in assessing damages for conversion.
1 Citers


 
Royscot Trust Ltd v Rogerson [1991] 2 QB 297; [1991] EWCA Civ 12
1991


Damages, Torts - Other, Contract, Damages
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would receive for a fraud.
Misrepresentation Act 1967 2(1)
1 Cites

1 Citers

[ Bailii ]
 
Royscot Trust Ltd v Rogerson [1991] 2 QB 297; [1991] EWCA Civ 12
1991


Damages, Torts - Other, Contract, Damages
Doyle -v- Olby (Ironmongers) Ltd was an appropriate way of assessing damages for an action under the Act, and damages are calculated on the basis of fraud.
A client misled into an investment is entitled to the measure of damages he would receive for a fraud.
Misrepresentation Act 1967 2(1)
1 Cites

1 Citers

[ Bailii ]
 
Corbett v Barking Havering and Brentwood Health Authority [1991] 2 QB 408; [1990] EWCA Civ 15
1991
CA
Farquharson LJ, Lord Justice Ralph Gibson
Personal Injury, Damages
The Claimant was a child who would have been dependant on his deceased young mother only until adulthood. When the trial took place the infant Plaintiff was 11.5 with a dependency until the age of 18. As the multiplier calculated as at the date of death was 12 there was only one half of a year left for the future dependency. Held: The Court was bound by the date of death calculation rule even though the multiplier was effected primarily by the Claimant’s needs. "The power to deprive a tardy litigant of interest when he is guilty of unjustifiable delay is an essential discipline."
The court was asked as to the quantification of damages for a child after the death of his mother in giving birth to him.
Fatal Accidents Act 1976 3(1)
1 Citers

[ Bailii ]
 
The Peonia [1991] I Lloyd's Rep 100
1991
CA
Lord Justice Bingham, Lord Justice Slade
Damages, Transport, Contract
The ship had been returned beyond the charter date. The court was asked whether, when the vessel was sent on a legitimate last voyage but, through no fault of the charterers, was then redelivered after the final terminal date, the owners were entitled in respect of the overrun period to hire at the market rate (if higher than the charterparty rate) or only at the charterparty rate. Held: The owners could claim the market rate. In relation to an illegitimate last voyage Lord Justice Bingham said that the owner: "was entitled to payment of hire at the charterparty rate until redelivery of the vessel and (provided he does not waive the charterer's breach) to damages (being the difference between the charter rate and the market rate if the market rate is higher than the charter rate) for the period between the final terminal date and redelivery".
Lord Justice Slade: "The judgments of Lord Denning MR and Lord Justice Browne in The Dione …are, in my opinion, on a proper analysis, authority binding this Court for the proposition that if charterers send a vessel on a legitimate last voyage and the vessel is thereafter delayed for any reason (other than the fault of the owners) so that it is redelivered after the final terminal date, the charterers will (in the absence of agreement to the contrary) be in breach of contract and accordingly, if the market rate has gone up, will be obliged to pay by way of damages the market rate for any excess period after the final termination date up to redelivery…"
1 Citers


 
Sealace Shipping Co Ltd v Oceanvoice Ltd, The Alecos M [1991] 1 Lloyd's Rep 120
1991
CA
Neill LJ
Contract, Damages
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for secondhand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator had held that this would be unreasonable. Instead, he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller's breach. Held: The arbitrator's decision was upheld
Neill LJ said: "I can only read his award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? And he gave the answer: they lost its scrap value which in the circumstances was the only value which it had for them."
1 Citers


 
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500
1991

Samuels JA
Commonwealth, Damages
(New South Wales) The plaintiff was seriously injured in an industrial accident caused by the defendant's negligence. At first he received payments of worker's compensation but when these ceased he took to supplementing his income by growing and selling marijuana. This was a criminal offence for which he was convicted and served some eight months imprisonment. He also lost his employment. He claimed compensation for loss of earnings while in prison and afterwards on the ground that it was a consequence of the impecuniosity caused by the accident. Held. (majority) This damage was irrecoverable. Samuels JA said: "If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute."
1 Citers


 
Hyundai Merchant Marine Co Ltd v Gesuri Chartering Co Ltd (The Peonia) [1991] 1 Lloyd's Rep 100
1991
CA

Damages
If a legitimate last voyage under a charterparty nevertheless proves in the event to exceed the implied margin, the charterer will be bound to pay any increase in the market rate above the charter rate during the period of the excess.
1 Citers


 
Vasiliou v Secretary of State for Transport [1991] 2 All ER 77
1991
CA
Nicholls LJ
Land, Damages, Planning
When considering the revocation or modification of a planning consent, any impact on an interested party is a relevant consideration. A planning permission should not have been granted closing a public road without considering its adverse effect on the business of traders relying on it. In the absence of a stopping-up or diversion order, the grant of planning permission does not of itself affect or override any existing rights of property or over a highway On a stopping up order the Secretary of State cannot go behind the planning authority's decision on the planning issues. It remains, however, a matter for the judgment of the Secretary of State.
1 Citers


 
Thomas v Bunn [1991] 1 AC 362; [1991] 2 WLR 27; [1991] 1 All ER 193
1991
HL
Lord Ackner
Damages, Costs
From its enactment it was accepted that s 17 applied to orders for costs to be taxed - even though before taxation was completed there was no sum for which execution could be levied - and did so from the date of the order (the incipitur rule), not the date of the certificate of taxation (the allocatur rule), although the latter rule had for a while prevailed in Chancery.
Lord Ackner said: "If the words used in this section are considered in isolation, the problem would not appear to be a difficult one. It is accepted there cannot be a judgment debt until there is a judgment for a quantified sum, i.e. a final as contrasted with an interlocutory judgment. Such a final judgment is to carry interest from the time of entering up 'the judgment', i.e. the judgment which creates the judgment debt, i.e. the final judgment. This is made doubly clear by the provision that the interest shall run 'until the same shall be satisfied'. Until there is a quantified sum which the judgment debtor is obliged by the terms of the judgment to pay, there is no judgment which he is able to satisfy. The final provision in the section that 'such interest may be levied under a writ of execution on such judgment' must refer to the judgment which has created the judgment debt. That is the final judgment." and . .
"The wording of section 17 clearly envisages a single judgment which constitutes the 'judgment debt'. This 'judgment debt' can only arise where the judgment itself quantifies the sum which the judgment debtor owes to his judgment creditor. The language of the section does not envisage an interlocutory judgment, but only a final judgment."
Judgments Act 1838 17
1 Cites

1 Citers


 
Sealce Shipping Company Limited v Oceanvoice Limited [1991] 1 Lloyds Rep 120
1991
CA
Neill LJ
Damages
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for second-hand propellers. So the only way of providing a spare propeller would have been to commission the manufacture of a new propeller at great expense. The arbitrator held that this would be unreasonable. Instead he awarded the scrap value of the propeller, since that was all the buyer had actually lost by reason of the seller's breach. Held: The arbitrator's award was upheld. The court considered the principles for the award of damages in a case of the sale of a ship with a spare propeller. The court applied principles derived from construction contracts.
Neill LJ said: "I can only read this award as meaning that he asked the question: what did these buyers really suffer as a result of the non-delivery of this spare propeller with this vessel? and he gave the answer: they lost its scrap value which in circumstances was the only value which it had for them."
1 Citers


 
O'Brien's Curator Bonis v British Steel Plc 1991 SC 315
1991


Scotland, Damages
The court can take judicial notice of the Ogden Tables.
1 Citers



 
 Smoker v London Fire and Civil Defence Authority; HL 1991 - [1991] 2 AC 502
 
Cresswell v Eaton [1991] 1 WLR 1113
1991


Damages

Fatal Accidents Act 1976
1 Citers


 
Laferriere v Lawson (1991) 78 DLR (4th) 609
1991


Commonwealth, Professional Negligence, Damages
(Supreme Court of Canada) A doctor negligently failed in 1971 to tell a patient that a biopsy had revealed a lump in her breast to be cancerous. She first learned of the cancer in 1975, when the cancer had spread to other parts of the body and she died in 1978 at the age of 56. The judge found that earlier treatment would have increased the chances of a favourable outcome but was not satisfied on a balance of probability that it would have prolonged her life. Gonthier J said that although the progress of the cancer was not fully understood, the outcome was determined. It was either something capable of successful treatment or it was not: "Even though our understanding of medical matters is often limited, I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery."
1 Citers


 
Tagro v Cafane and Another [1991] 1 EGLR 279; [1991] 2 All ER 235; [1991] EWCA Civ 1; (1991) 23 HLR 250; [1991] EGCS 5; [1991] 1 WLR 378
23 Jan 1991
CA
Lord Donaldson MR, Russell and Nolan LJJ
Housing, Damages
The private landlord held premises under a lease from a local authority which prohibited sub-letting and assignment. He sub-let to the plaintiff and then unlawfully evicted her. He appealed against an award to her of statutory damages, submitting that the prohibition of sub-letting and assignment in the lease meant that the market value of the landlord's interest in the property under s.28 was virtually nil. Held: The argument was rejected.
Lord Donaldson MR said: "I do not understand that section to contemplate, as Mr Carnwath's argument contemplates, that the premises will be treated as virtually inalienable and having no value in consequence. Subsection (3) clearly contemplates that there shall be no increase in the damages because the effect of the tenant being dispossessed is that it enables some very valuable development to take place. But the whole concept of the landlord in default selling his interest on the open market to a willing buyer assumes that he can sell it on the open market to a willing buyer, and that involves the subsidiary proposition on the facts of this case that the willing buyer would take a lease from the Lambeth London Borough Council on a monthly basis subject to the Landlord and Tenant Act 1954 with a covenant against subletting or assignment in exactly the same way as Mr Cafane had done. In my judgment, there is nothing in that point."
Housing Act 1988 28
1 Citers

[ Bailii ]

 
 Lunt v Liverpool City Justices; CA 5-Mar-1991 - Unreported, 5th March 1991
 
Alcock and Others v Chief Constable of South Yorkshire Police [1991] 3 All ER 88
31 May 1991
CA
Lords Justices Parker, Stocker and Nolan
Damages, Personal Injury
The defendant policed a football match at which many people died. The plaintiffs, being relatives and friends of the deceased, inter alia suffered nervous shock having seen the events either from within the ground, or from outside or at home on television. Held: To establish a claim the plaintiffs had to show that it was foreseeable that they would suffer the injury, and also a sufficiently close relationship with the deceased. If this was not a family relationship, it had to be one of particular closeness. To make a claim for damages for nervous shock, the plaintiffs must show physical proximity. Those who had seen the events on television could not so claim.
1 Cites

1 Citers

[ lip ]
 
Watts and Co v Morrow Gazette, 08 January 1992; [1991] 4 All ER 939; [1991] 1 WLR 1421; [1991] EWCA Civ 9
30 Jul 1991
CA
Bingham LJ, Sir Stephen Brown LJ, Bingham LJ
Damages, Negligence
The plaintiff had bought a house on the faith of the defendant's report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his negligent survey of a property. The plaintiff sought damages for distress, and the cost of making good the defects. The appellant argued that he should pay or only the diminution in value of the house by reason of the existence of those defects. Held: The correct level of damages to be awarded are for the diminution in value of the property with those faults, not the cost of repairing the faults. "A contract breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy. But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective. A contract to survey the condition of a house for a prospective purchaser does not, however, fall within this exceptional category. In cases not falling within this exceptional category, damages are in my view recoverable for physical inconvenience and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort. If those effects are foreseeably suffered during a period when defects are repaired I am prepared to accept that they sound in damages even though the cost of the repairs is not recoverable as such." Exceptions mayinclude "where the very object of the contract is to provide pleasure, relaxation, peace of mind or freedom from molestation", but this is an "exceptional category".
1 Cites

1 Citers

[ Bailii ]
 
Canson Enterprises Ltd v Boughton and Co [1991] 3 SCR 534; 1991 CanLII 52 (SCC); (1991) 85 DLR (4th) 129; [1992] 1 WWR 245; 1 BCLR (2d) 1
21 Nov 1991

Lamer CJ and Wilson, La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ
Equity, Damages
Canlii Supreme Court of Canada - Canada - Damages -- Breach of fiduciary duty -- Solicitor preparing conveyance not advising purchasers of secret profit made on a flip -- On agreed facts, purchasers fully apprised of situation would not have entered the transaction -- Action arising because inability of other professionals found liable in tort for faulty construction of building on subject lands to pay damages -- Whether or not damages recoverable.
The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land. The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase. The development proved to be a failure as a result of the negligence of the engineers and contractors involved. The appellants sought to recover the loss incurred on the development from the lawyers, on the basis that they would not have proceeded with the purchase if they had known of the secret profit. Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts.
La Forest J (majority) distinguished between the breach of a trustee's obligation to hold the object of the trust, where "on breach the concern of equity is that it be restored . . or, if that cannot be done, to afford compensation for what the object would be worth", and on the other hand "a mere breach of duty", where "the concern of equity is to ascertain the loss resulting from the particular breach of duty." In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation "the difference in practical result between compensation and damages is by no means as clear". He went on to observe in relation to claims of the latter kind: "The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress."
McLachlin J dissented as to the way the result was obtained but not as to the result. She rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract. In her view, that approach overlooked the unique foundation and goals of equity. In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship. The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other. The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken. The fiduciary relationship had trust, not self-interest, at its core.
She concluded: "In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiff's loss of opportunity. The plaintiff's actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach."
1 Citers

[ Canlii ]

 
 Alcock and Others v Chief Constable of South Yorkshire Police; HL 28-Nov-1991 - Gazette, 22 January 1992; [1991] 3 WLR 1057; Times, 29 November 1991; [1992] 1 AC 310; [1991] UKHL 5
 
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 66 ALJR 12; [1991] HCA 54; (1992) 174 CLR 64
12 Dec 1991
HCA
Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
Commonwealth, Damages
(High Court of Australia) In a claim for damages for breach of contract, wasted expenditure was claimed and there was a complex dispute as to what the consequences of performing the contract would have been. Held: The law should not, when assessing damages, adopt an all-or-nothing balance of probability approach, and assume certainty where none in truth exists.
1 Citers

[ Austlii ]
 
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