REMEDIES LAW 405: Tutorial Guide 2004

WEEK ONE              

Reading: TNK Chapters 1, 2 part Ch 3 (pp 1-77)

Ch 1: The Nature of Remedies

Delimiting Remedies

Why study the law of Remedies?

John Austin, Lectures on Jurisprudence (TNK 1-3). What are primary right, and how do they differ to secondary rights?

Photo Production Ltd v Securicor Transport Ltd (TNK 4-6)

CA Wright "The Law of Remedies as a Social Institution" (TNK 7-10).

What are the aims of remedial law?

Compensation (Chapters 3-5)

Specific Relief or Coercion (Chapters 8-9)

Restitution (Chapter 6)

Punishment (Chapter 7)

Is it the case of “where there is a right there is a remedy”. Consider the relationship between liability and remedy (TNK pp 12-13). What is the “monist” view of remedies? How does this view differ from the “dualist” view of remedies?

Legal and equitable remedies

What is the fusion fallacy? (It is using a common law remedy in support of an equitable right.) What is wrong with that?

Consider Harris v Digital Pulse (TNK 19-23). Note that we will be returning to this issue in later classes on compensation in equity and punishment. How would “monists” and “dualists” respond to the fusion fallacy? Consider the quote by Mason CJ in Mason P’s dissenting judgment. Note the points made on pp 24-26. We may not have time to discuss all these points.

NB: The issues raised in Chapter one may be useful as a starting point for your research for the essay.

Ch 2:   Self-help Remedies

Tort

Traian v Ware (TNK 28-30)

Bird v Holbrook (TNK 31-32). Note 6 TNK 33. Best CJ finds that “he who sets spring guns, without giving notice, is guilty of an inhuman act.” Consider the judgment of Lord Denning in McPhail v Persons Unknown (TNK 33-36) in light of the sentiment expressed in Bird v Holbrook.

Underhill v Sherwell (TNK 37-38). Note reference to Fontin v Katapodis (TNK 37). (Pl ease note there is an extract of this case on pp 566-567. This case will be discussed further in the class on Punishment later in the course.)

Note 5, p28

Contract

Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (TNK 42-43)

qn9, 10, p45

Ch 3:   Compensation in particular situations

Damages

We will concentrate mainly on common law damages.

Definition of damages McGregor on Damages  (TNK 54). NB Note 1 p 54.

Compensation principle in tort: Livingstone v Rawyards Coal Co (TNK 54)

Compensation principle in contract: Robinson v Harman (TNK 55)

Compensation principle for the tort of deceit: Doyle v Olby (TNK 55-56).

Note also the compensation principle for defamation: Carson v John Fairfax & Sons (TNK 53). We will return to this case at p 147.

Compensation principle to apply under s 52 of TPA: Marks v GIO (TNK 56-60). What is the main difference between the judgments of Gaudron and Gummow JJ and the joint judgment of McHugh, Hayne and Callinan JJ?

qn1-6, p 60-62 especially qn 2 and 3 which focus on the difference in approach taken by the High Court in Marks v GIO and Gates v CML.

Actual loss

Re National Coffee Palace Co; Exparte Panmure (TNK 62-64)

Butler v Egg & Egg Pulp Marketing Board (TNK 64-65)

qn 1, p 65

Damages are awarded unconditionally

The Albazero (TNK 66-68)

qn1, p68

The once and for all lump sum rule

Todorovic v Waller (TNK 71-72)

qn1,2, p73

Note the statutory and common law exceptions to the rule (TNK 73-75)

WEEK TWO:            

Reading: TNK Chapter 3 cont’d (pp 77-152)

From week 2 onwards, we will concentrate on problem solving. We will, however, deal with difficult points of law as well. Please ask your tutor about difficulties you might be having on any particular parts. The main skill in Remedies is keeping the whole of the law and remedial options in mind, while applying the remedies to the facts. Few parts of it are difficult in themselves, but you need to concentrate on getting an overall grasp of it.

In addition to TNK, students must also bring a copy of the Civil Liability Act 2002 (NSW) to class.

Points for discussion

Recoverable heads of loss

Teubner v Humble (TNK 82-84)

qn1, p84

Sharman v Evans (TNK 86-89)

qn1, 2, p89

Wynn v NSW Insurance Ministerial Corporation (TNK 92-97). Which aspect of Brennan CJ 's judgment differed from the joint judgment? Explain how.

Problem questions

Personal Injury (TNK 77-135)

Mrs Slow and her 16 year old daughter were both left paraplegic after a car accident. Mr Fast was the negligent driver causing the injuries. Mr Slow is one-armed and has lived on unemployment benefits all his life. He now has to care for his wife, and daughter and 2 young sons, aged 1 and 3 on his own. Prior to the accident Mrs Slow and her daughter did all the housework and both she and her daughter had part-time jobs.

Consider the common law remedies available. What effect, if any, would the Civil Liability Act have on the damages award.

Under what heads are damages can each plaintiff recover damages?

How would damages be calculated if Mrs Slow and her daughter had died as a result of the accident. Could Mr Slow claim for domestic work from Mr Fast?

Defamation (TNK 135-152)

Herb Gravy, an over zealous reporter from the local newspaper, The Daily Chronicle, reported the accident in an article entitled, "Alcohol: too Fast for our Roads" claiming that after the accident police breath tested Mr Fast and found that he had a blood alcohol level of 0.06. A photograph of police breath testing Mr Fast accompanied the article, but in actual fact police found no traces of alcohol in Mr Fast's blood. Herb had reported this finding without getting verification from police. Since the publication of the article Mr Fast's life has become even more miserable.

WEEK THREE

Reading: TNK pp 152-193 (property and economic loss)

Jane is a dentist and she runs her practice in the Heritage Listed house which she bought 3 years ago. She has spent nearly $100,000 in restoring the house to its early 1800s grandeur on top of the $900,000 she paid for the house. She lives in the upstairs rooms and she also rents out the other downstairs front room to Nick for use as a hair salon. She finds the idea of a dental surgery in a heritage house cosy and unique and besides, it is also handy for after hours emergency work. The house is surrounded by towering blocks of units and the zoning of her land is also suitable for high-rise development. About a month ago, her next door neighbour began construction work on a new swimming pool and after a week of excavations, Jane had noticed large cracks on all the downstairs walls. Now that a month has gone by, her house has been deemed unsafe by the local council - the floor has split with a gaping hole 2m wide and the roof has caved in. Jane is suffering a nervous breakdown as a result of seeing her beautiful house falling apart. She has had to close her dental practice temporarily as she decides what to do. Jane would like the neighbours to pay for the rebuilding of the house. Advise Jane. (You may assume that the Heritage listing does not prevent the house from being knocked down).

Nick too has had to close down his hairdressing business. He is also distressed because the roof of the house had collapsed on his three upright hairdryers. These hairdryers are of particular sentimental value to Nick. They had been manufactured in the 1970s and were very difficult to find. Nick had bought them because they complimented the décor of his salon. Their market value was $1000. Nick was so upset at their damaged state that he immediately sought to have them repaired which cost $2000. It was possible to buy reliable but not as stylish secondhand hairdryers for $300. What amount should Nick be entitled to by way of damages.

Evans v Balog (TNK 153-154)

Questions 2, 4, 5, 6 and 7 p 155

Pantalone v Alaouie (TNK 156-158)

Questions 1 and 2, p 158

Campbelltown City Council  McKay (TNK 160-164)

Oldham v Lawson (No 1) (TNK 166-167)

Hoad v Scone Motors Pty Ltd (TNK 168-171)

Question 1, p 171

Liesbosch Dredger v SS Edison (TNK 173-176)

Question 3, p 176; Question 5 p 177

Strand Electric & Engineering v Brisford Entertainments Ltd (TNK 179-182)

Question 2, p 182-182

Rentokil Pty Ltd v Channon (TNK 191-193)

TNK pp 193-222 (contract)

Aqua Services has a contract with Relaxworld to construct a diving pool and a spa at two of Relaxworld's Sydney premises. Relaxworld is hoping that the addition of the pools and spas at both locations will enhance its business as the nation's leading relaxation therapy provider. If the pools and spas prove to be a success at the Sydney locations, the plan is to include them at all of Relaxworld's other ten premises. The contract states that the pools must be 10m deep and it also provides for an independent arbitrator to exercise a discretion to cancel the contract in the event of a breach. At the opening of the new facilities at the first location, the diving pool was extremely popular with Relaxworld's patrons who enjoyed the ability to throw off their worries with each dive. The spa was also enjoyed by a number of patrons. There was however a small incident when Monica was stuck in the spa when the filter sucked and grabbed her bottom for about 20 minutes.

Monica suffered no physical injury but was uncomfortable for the duration she was stuck.

After the opening, work commenced on the pool at the second location. It was then discovered that the pool at the first location was only 9m deep. The CEOs of both companies met to discuss the situation. The meeting ended disastrously with both CEO hurling abuses at each other. Relaxworld's CEO declared that the contract was "over" and the CEO of Aqua Services replying "Fine by me!"

Relaxworld is now being sued by both Monica and Aqua Services. Aqua Services' claim includes the $10,000 it paid for the special Italian tiles for the second pool. Due to a worldwide shortage of this type of tile, their value has now increased to $20,000. Aqua Services is also claiming lost of opportunity to construct the pools and spas at the other 10 premises. Advise Relaxworld.

Fuller and Perdue, "The Reliance Interest in Contract Damages" (TNK 195-198)

Question 3, p 198

McRae v Commonwealth Disposals Commission (TNK 201-206)

Questions 1-5, p 206

Commonwealth v Amann Aviation (TNK 206-220)

Questions 1 and  2, p 221

WEEK 4

Reading: TNK 222-283

TNK pp 222-246 (contract continued)

Lavarack v Woods of Colchester Ltd (TNK 222-226)

Questions 1 and 4, p 226-227

TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (TNK 227-232)

Questin 2, p 232

Apply the principle developed by the High Court in Bellgrove v Eldridge (TNK 235-237) to following set of facts:

John's favourite colour is brown and he contracted to have his new house built in brown coloured bricks. The builder however has built the whole house out of bright red coloured bricks because red bricks are cheaper than brown bricks, and besides, he thought that John could re-paint the house brown and it would be just like having brown bricks. Advise John.

Baltic Shipping Co v Dillon (TNK 239-244)

Question 3, p 239

Questions 7 and 8 , p 245

Return to consider Anthanasopoulos v Mosely (Question 5, p 173) and Farley v Skinner (Question 4 , p 165)

Week 4

TNK pp 222-246 (contract continued)

Lavarack v Woods of Colchester Ltd (TNK 222-226)
Questions 1 and 4, p 226-227
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (TNK 227-232)
Questin 2, p 232
Apply the principle developed by the High Court in Bellgrove v Eldridge (TNK 235-237) to following set of facts:

John's favourite colour is brown and he contracted to have his new house built in brown coloured bricks. The builder however has built the whole house out of bright red coloured bricks because red bricks are cheaper than brown bricks, and besides, he thought that John could re-paint the house brown and it would be just like having brown bricks. Advise John.

Baltic Shipping Co v Dillon (TNK 239-244)
Question 3, p 239
Questions 7 and 8, p 245
Return to consider Sunvara (Question 2, p 165) and Farley v Skinner (Question 4, p 165)

Week 4 (continued)

TNK pp 246-283 (concurrent liability, causation) (last year pp 285-291, 309-332)
Since breach of contract is actionable per se (without proof of loss), consider the case of a solicitor’s carelessness which causes no harm to the client (eg sending a letter of demand to an incorrect address when a correctly addressed letter is sent the next day). Would a contract action for breach of the implied duty to take reasonable care succeed (for nominal damages) or fail?
March v Stramare (TNK 257-262)
Question 1(d), p 263
Compare Liesbosch Dredger v SS Edison (TNK 173-176); was the House of Lords in that case simply isolating a single “effective” cause?
Chappel v Hart (TNK 266-270)
Questions 1-3, p 270
Murphy v Overton Investments Pty Ltd [2004] HCA 3 (appeal allowed); Henville v Walker (TNK 275-282)
Questions 1-3, p 282

Week 5

TNK pp 283-305 (certainty)
Malec v JC Hutton Pty Ltd (TNK 284-288)
Question 1, p 288
Howe v Teefy (TNK 290-291)
Question 2, p 291
Commonwealth v Amman Aviation (TNK 297-300)
In Amann Aviation the contract would have become profitable for the plaintiff upon renewal. The trial Judge held that reliance damages were not recoverable and awarded $410,000 representing the net profit Amann would have made, discounted by 50% to reflect the chance of the contract being renewed. The Full Court awarded (and the High Court affirmed) reliance damages of $5,475,184 made up of four components (the difference between the price paid for the aircraft and their agreed value, pre-operational expenditure, termination payments to employees and security deposit). Why were the two heads of loss regarded as mutually exclusive? Does this explain the majority’ decision not to discount the damages to reflect the chance of renewal? How?
De Sales v Ingrilli (TNK 301-305)
Questions 1 and 2, p 305
Monica had wanted to get out of the modelling industry so that she could pursue a career as a chef. However, she has an obsession with her self image and is particularly unhappy with her small nose. She has decided to undergo plastic surgery to have her nose made larger. She saw her plastic surgeon, Dr Putty, once before the operation, but he did not think it was necessary to tell her that there was a chance that the operation could effect the tone of her voice and her sense of smell. After the operation Monica was happy with her new nose, but was devastated when she discovered that her voice was much deeper than before the operation and that she had completely lost her sense of smell and could no longer pursue a career as a chef.
Week 5 (continued)

TNK pp 305-367 (contributory negligence, remoteness, mitigation, public policy) (last year 332-385)

Podrebersek v Australian Iron & Steel Pty Ltd (TNK 307-308)
Question 5, p 309
Astley v Austrust (TNK 311)
Hadley v Baxendale (TNK 319-320)
Questions 2 and 3, p 322
Victoria Laundry v Newman Industries (TNK 322-323)
Question 2, p 323
Wagon Mound (No 1) (TNK 327-329) and Wagon Mound (No 2) (TNK 330)
Questions 4 and 5, p 330
Kavanagh v Akhtar (TNK 337-338)
British Westinghouse v Underground Electric Railways (TNK 341-345). Compare Hoad v Scone (TNK 168-171). Had the plaintiff in British Westinghouse simply made a bad bargain to start with? A comparable contemporary situation may be a business which contracts for the purchase of computers, built to today’s standards, to be delivered in two years’ time!
Questions 1-5, p 345
White v Carter (Councils) Ltd v McGregor (TNK 347-349)
Question 3, p 349
Glavonic v Foster (TNK 351-352)
Questions 1-3, p 352