Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0008
A. Burrows
A word is merited about the terminology of damages for loss of a chance. While it may be possible to distinguish conceptually between damages for loss of a chance and damages for the chance of a loss, this chapter draws no such distinction. Rather it uses the terminology of loss of a chance in a wide sense which covers both the lost chance of acquiring a benefit and the lost chance of avoiding a detriment. Increasing the chance of a loss equates to the lost chance of avoiding a detriment and this explains why a case like Barker v Corus (UK) Plc—where, as we have seen in the previous chapter, the courts awarded damages proportionately to the ‘material increase in risk’ of a disease—is equally well viewed as a loss of a chance case.
关于机会丧失损害赔偿这一术语，有必要提一下。虽然在概念上有可能区分机会损失损害赔偿和机会损失损害赔偿，但本章没有作出这种区分。相反，它使用了广义上的“失去机会”一词，既包括失去获得利益的机会，也包括失去避免损害的机会。增加损失的机会等于失去了避免损害的机会，这就解释了为什么像Barker v Corus (UK) plc这样的案件——正如我们在上一章看到的，法院根据疾病“风险的实质性增加”按比例判给损害赔偿——同样被视为一个机会案件的损失。
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Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0022
A. Burrows
Prior to 1858 there was probably some power, albeit very restricted, to award damages in equity in addition to specific performance. But this is of merely historical interest, because by the Chancery Amendment Act 1858, s 2 (Lord Cairns’s Act) the Court of Chancery was given power to award damages ‘in addition to or in substitution for [an] injunction or specific performance’. This power to award what are commonly referred to as ‘equitable damages’ is now vested in the courts by the Senior Courts Act 1981, s 50. As regards damages in addition, the power is self-explanatory—whenever an injunction or specific performance is granted, damages can be added. But when may damages in substitution be awarded?
{"title":"Equitable (compensatory) damages","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0022","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0022","url":null,"abstract":"Prior to 1858 there was probably some power, albeit very restricted, to award damages in equity in addition to specific performance. But this is of merely historical interest, because by the Chancery Amendment Act 1858, s 2 (Lord Cairns’s Act) the Court of Chancery was given power to award damages ‘in addition to or in substitution for [an] injunction or specific performance’. This power to award what are commonly referred to as ‘equitable damages’ is now vested in the courts by the Senior Courts Act 1981, s 50. As regards damages in addition, the power is self-explanatory—whenever an injunction or specific performance is granted, damages can be added. But when may damages in substitution be awarded?","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121251066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0003
A. Burrows
The enactment of the Human Rights Act 1998 (HRA 1998) has raised a number of novel issues for English law. But the impact of the Act on the subject matter of this book has been limited. That impact is best understood by clarifying that there are two main respects in which the Act is relevant to civil wrongs.
《1998年人权法案》(Human Rights Act 1998)的颁布为英国法律提出了一系列新的问题。但该法案对本书主题的影响是有限的。要理解这种影响，最好的办法是澄清该法与民事不法行为相关的两个主要方面。
{"title":"The impact of the Human Rights Act 1998","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0003","url":null,"abstract":"The enactment of the Human Rights Act 1998 (HRA 1998) has raised a number of novel issues for English law. But the impact of the Act on the subject matter of this book has been limited. That impact is best understood by clarifying that there are two main respects in which the Act is relevant to civil wrongs.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127759211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1017/cbo9781107445260.014
A. Burrows
Specific performance is an equitable remedy which enforces a defendant’s positive contractual obligations: that is, it orders the defendant to do what he or she promised to do. It is therefore a remedy protecting the claimant’s expectation interest, the justification for such protection resting ultimately on the morality of promise-keeping. Prohibitory injunctions also enforce contractual promises, but differ in that the promises in question are there negative. However, if what is in form a prohibitory injunction, in substance orders specific performance, or if the courts consider that in practice the injunction amounts to specific performance, it is governed by specific performance principles and is dealt with in this chapter.
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Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0012
A. Burrows
The general rule can be expressed as follows: a court must assess in a lump sum all past, present, and future loss resulting from the particular tort or breach of contract being sued for, because no damages can be later given for a cause of action on which judgment has already been given. The classic authority is Fitter v Veal, where the claimant had been awarded £11 damages against the defendant in an action for assault and battery. His injuries proved to be more serious than at first thought and he had to undergo an operation on his skull. It was held that he could not recover for this further loss in a new action.
一般规则可以表述如下:法院必须一次性评估因被起诉的特定侵权行为或违约而造成的所有过去、现在和未来的损失，因为对于已经作出判决的诉因，不能在以后给予损害赔偿。典型的案例是菲特诉威尔案(Fitter v Veal)，该案中，原告被判以人身攻击罪向被告支付11英镑的赔偿金。事实证明，他的伤势比最初想象的要严重，他不得不接受头骨手术。人们认为，他不能在新的诉讼中弥补这一进一步的损失。
{"title":"Form of compensatory damages, date for assessment, taxation","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0012","url":null,"abstract":"The general rule can be expressed as follows: a court must assess in a lump sum all past, present, and future loss resulting from the particular tort or breach of contract being sued for, because no damages can be later given for a cause of action on which judgment has already been given. The classic authority is Fitter v Veal, where the claimant had been awarded £11 damages against the defendant in an action for assault and battery. His injuries proved to be more serious than at first thought and he had to undergo an operation on his skull. It was held that he could not recover for this further loss in a new action.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125851115","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0006
A. Burrows
This chapter, by way of introduction to compensatory damages, looks at the different types of loss, the compensatory aims, and the theoretical underpinnings of compensation. It goes on to examine, albeit to reject, the thesis that the primary function of damages is not compensation but is rather to value the right infringed. It also examines the controversial view that a standard measure of damages is a non-compensatory cost of cure.
{"title":"Introduction to compensatory damages","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0006","url":null,"abstract":"This chapter, by way of introduction to compensatory damages, looks at the different types of loss, the compensatory aims, and the theoretical underpinnings of compensation. It goes on to examine, albeit to reject, the thesis that the primary function of damages is not compensation but is rather to value the right infringed. It also examines the controversial view that a standard measure of damages is a non-compensatory cost of cure.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"54 8","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132871493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0018
A. Burrows
Mental distress covers, for example, disappointment, worry, anxiety, fear, upset, and annoyance. On the traditional approach taken by the courts, mental distress, along with ‘pain and suffering’ consequent on a personal injury and ‘bereavement’, compensated under the Fatal Accidents Act 1976, are the heads of non-pecuniary loss covering the claimant’s loss of happiness and distress in contrast to the other ‘objective’ non-pecuniary losses (such as ‘loss of amenity’ consequent on a personal injury and ‘loss of reputation’). On an alternative view, all non-pecuniary loss is regarded as ultimately dealing with distress or loss of happiness and ‘mental distress’ is seen as a residual head for distress not falling within any of the other heads.
{"title":"Mental distress or physical inconvenience (except consequent on personal injury or death)","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0018","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0018","url":null,"abstract":"Mental distress covers, for example, disappointment, worry, anxiety, fear, upset, and annoyance. On the traditional approach taken by the courts, mental distress, along with ‘pain and suffering’ consequent on a personal injury and ‘bereavement’, compensated under the Fatal Accidents Act 1976, are the heads of non-pecuniary loss covering the claimant’s loss of happiness and distress in contrast to the other ‘objective’ non-pecuniary losses (such as ‘loss of amenity’ consequent on a personal injury and ‘loss of reputation’). On an alternative view, all non-pecuniary loss is regarded as ultimately dealing with distress or loss of happiness and ‘mental distress’ is seen as a residual head for distress not falling within any of the other heads.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133041718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0021
A. Burrows
Although, strictly speaking, the law of limitation is separate from the law of remedies, the two are closely connected. Moreover, it has been said to be ‘… trite law that the English Limitation Acts bar the remedy and not the right’. It has therefore been thought helpful to include here a very brief outline of limitation periods for claims for damages, albeit with the warning that this chapter does not attempt to deal with all the details of the law.
{"title":"Limitation periods","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0021","url":null,"abstract":"Although, strictly speaking, the law of limitation is separate from the law of remedies, the two are closely connected. Moreover, it has been said to be ‘… trite law that the English Limitation Acts bar the remedy and not the right’. It has therefore been thought helpful to include here a very brief outline of limitation periods for claims for damages, albeit with the warning that this chapter does not attempt to deal with all the details of the law.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123877853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0014
A. Burrows
Breach of contract damages are normally sought and awarded for this type of loss. It is therefore not surprising that there is a host of different ways of analysing and subdividing it. Here the approach adopted will be to divide between basic pecuniary loss, which will be primarily concentrated on, and which focuses on the benefit to which the claimant was contractually entitled and of which it has been wholly or partially deprived by the defendant’s breach, and additional pecuniary loss.
{"title":"Pecuniary loss (except consequent on personal injury, death, or loss of reputation)","authors":"A. Burrows","doi":"10.1093/oso/9780198705932.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780198705932.003.0014","url":null,"abstract":"Breach of contract damages are normally sought and awarded for this type of loss. It is therefore not surprising that there is a host of different ways of analysing and subdividing it. Here the approach adopted will be to divide between basic pecuniary loss, which will be primarily concentrated on, and which focuses on the benefit to which the claimant was contractually entitled and of which it has been wholly or partially deprived by the defendant’s breach, and additional pecuniary loss.","PeriodicalId":273138,"journal":{"name":"Remedies for Torts, Breach of Contract, and Equitable Wrongs","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125592231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-06-18DOI: 10.1093/oso/9780198705932.003.0026
A. Burrows
Punitive or exemplary damages are damages whose purpose is to punish the defendant for his or her wrongful conduct. In Broome v Cassell Lord Hailsham said that he preferred the term ‘exemplary damages’ to ‘punitive damages’ as better expressing the policy of the law. English courts have subsequently followed Lord Hailsham’s preference. But in its Report on this area in 1997, the Law Commission recommended that the pre-Broome v Cassell terminology of ‘punitive damages’ was clearer and more straightforward and did not accept that this label deflected attention from the deterrence and disapproval aims of such damages. As the Law Commission said, ‘When one uses the term “punishment” in the criminal law, one does not thereby indicate that deterrence is not an important aim.’ Although nothing of substantive importance should turn on which label is adopted, the Law Commission’s approach is persuasive and the term ‘punitive damages’ is therefore preferred in this chapter and book.
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