Chapter 1 – General Principles of Damages -Love v. Port of London Authority: well established that damages for aggravated
-Livingstone v Rawyards Co: any injury is to be compensated by damages – should injuries consequent on some pre-existing infirmity of the plaintiff are recoverable
receive sum of money which will put the party who has been injured or has suffered even if the infirmity is of a psychological nature
into the same position as he would have been if he had not sustained the wrong for -*psychological thin skill: must consider (1) timing, and (2) the nature of the alleged
which he is now getting his compensation psychological infirmity
-the plaintiff must establish on balance of probabilities that he has suffered a loss and
that loss has been caused by the defendant’s wrong 2. Unreasonable and Conflicting Medical Opinions
-Van Island Spar Lumbar: case depicts limits to the principle -Asamera Oil Corp: he is only bound to act like a ‘reasonable and prudent man’
[1] Remoteness 3. Consequences of unreasonableness
-H Parsons Ltd v Uttley Ingham: remoteness -duty to mitigate – plaintiff cannot recover from the defendants damages which he
-Czarnikow Ltd v Koufos: in case of breach of contract, court needs to consider himself could have avoided by taking reasonable steps
whether the consequences were of such a kind that a reasonable man, at time of
making contract would contemplate them as being a very substantial degree of [5] Anticipatory Breach
probability -one party’s intention to fail to fufil its contractual obligations to another party – ends
-Martin & Co: any pure economic loss suffered in addition to physical damage is counterparty’s responsibility to perform duties
unrecoverable as either too remote, or outside the scope of DoC -Snells Ltd v Thomson Stationary Co Ltd: in notes
[2] Loss of Profit [6] Personal Remedies
-Defaulting party is only liable for the consequences if they are at the time of -Wretheim v Chicoutimi Pulp Co: claim for damages by a buyer
contract; he ought reasonably to have contemplated as a serious possibility or real -Q: whether a defaulting buyer should be able to resist a market price claim, or a
danger similar claim for damages, by the seller on the ground that the seller’s cost of
production would have exceeded the contract price appears to be unsettled. If the
[3] Certainty and Causation compensatory basis of contract damages is taken to its logical conclusion, the
-may be necessary for plaintiff to prove, on balance of probabilities, that the tortious buyer’s defence should succeed unless the market price test is regarded as
act or omission was the effective cause of the harm suffered establishing a minimum, liquidated form of measure of damages. The reasoning in
-Snell v Farrell: during surgery there was a bleed, resulted in optic blindness Wertheim implicitly rejects such a characterization, as does our Draft Bill.
-Causation Principles: McGhee in a civil case, two broad principles: (1) that the onus
is on the party who asserts a proposition, usually the plaintiff; (2) where the subject [7] Collateral Benefits
matter of the allegation lies particularly within the knowledge of one party, that party -benefits entitled to receive for workplace injury
may be required to prove it -Ratych v Bloomer: no damages recoverable in respect for pay if continuation of pay
-Laferriere v Lawson: loss of chance – the cancer would have still killed the victim, -Cunningham v Wheeler: seeking to recover lost wages w/o deduction of their
thus no casual link between doctors negligence and death insurance or disability benefits
-Miller v Cooper: there should not be any deduction from any recovery for lost
[4] Mitigation wages.
-principle meaning is to refer to a plaintiff’s conduct that might have diminished the -Shanks v McNee: CoA decided that since the employees contributed 30% of the
loss cost of the premiums of the long term disability plan, those benefits were in the
-provocation: Landry v Patterson nature of insurance paid for by the employee and should not be deducted
-Janik v Ippolito: valuation of choice of loss – when victim refuses surgery, an -*ideal of compensation which is at the same time full and fair is met by awarding
intervening cause which cuts off the liability of the initial tortfeasor damages for all the plaintiff’s actual losses, and no more
-*double recover is not permitted
1. Unreasonable Refusal or Treatment -three main policy considerations to explain why a benefit should or shouldn’t be
-Steele v Robert George & Co: unreasonable refusal of treatment. deducted: (1) punishment (2) deterrence, and (3) the provision of incentives for
-thin skull doctrine: if the wrong is established the wrongdoer must take the victim as socially responsible behavior
he finds him.
[8] Time of Assessment
, -Robinson v Harman: where party sustains loss by breach of contract, he is to be -Whitwham v Westminster Brymbo Coal and Coke Company: plaintiff sued for an
placed in the same situation with respect to damages as if the contract had been injunction and damages, the defendant having trespassed on the plaintiff’s land by
performed tipping spoil onto it from its colliery
-Asmera Oil Corp: in order to seek specific performance, must have legitimate and -Attorney General v Blake: betrayed British secrets to the Soviet union, wrote
substantial interest – onus is on P to prove (2) there are special circumstances which autobiography – account of profits will be appropriate only in exceptional
render the P to not have a duty to mitigate, esp where a reasonable person would not circumstances – normally remedy of damages, specific performance and injunction,
put themselves at risk coupled w characterization of some contractual obligations as fiduciary are adequate
-Dodd Properties: in torts, person should be put in same position as far as money can response to breach of contract
do it, in the same place as if the tort had not been committed -awards Crown damages which equal the whole amount owed by Jonathan
-third party rights – in notes Cape to Blame. That is the remedy based on proprietary principles when
-Metropolitian Trust Co of Canada: agreement to land conditional, on the necessary proprietary rights are absent
obtaining the consent of the 2nd mortgagee -Robinson v Harman: rule of the common law is, that where a party sustains a loss
-Johnson v Agnew: written agreement to sell land by reason of a breach of contract, he is, so far as money can do it, to be placed in the
-Semelhago v Paramadevan: same situation, with respect to damages, as if the contract had been performed.
-damages for breach of contract are in a sense a substitute for performance – that is
[9] Mititgation, Efficient Breach, and Measure of Damages why they are considered an adequate remedy
-law is to require each party to choose between performing in accordance w the
contract and compensating the other party for any injury resulting from a failure to 1. Negotiating damages
perform -Wrotham Park Estate line of cases. These can be divided into two phases: (1) an
-Radford v DeFroberville: plaintiff sued for breach of contract to erect a boundary initial period in which awards based on a hypothetical release fee were made in the
wall on the defendant’s property exercise of the jurisdiction under Lord Cairns’s Act in substitution for injunctions to
-Miles v Marshall: dmgs are to be assessed as the diminution of the value of the prevent interferences with property rights and breaches of restrictive covenants over
property by reason of the non-repair. Dmgs are limited to the actual loss sustained land, and (2) later period in which awards calculated in a similar way were made at
by an injured party. common law on a wider and less certain basis.
(i) The first phase
[10] Punitive Damages -Wrotham Park Estate Co: The land was then developed as housing, the plans being
-defendant found guilty of committing a wrong or offense is ordered to pay on top of approved by the estate owners on the basis that a central area would remain free of
compensatory damages. Awarded by court to punish defendants whose conduct is buildings.
considered grossly negligent (ii) Attorney General v Blake: difficulty which he saw in the way of an award of
-Cassell & Co Ltd v Broome: sued appellants and author for damages for libel damages was that the Crown suffered no financial loss as a result of Blake’s
-Hill v Church of Scientology of Toronto: Punitive damages are awarded against a publication of book
defendant in exceptional cases for “malicious, oppressive and high-handed” -Townsview Properties Ltd: plaintiffs bring this action against the defendants, which
misconduct that “offends the court’s sense of decency” is described in the statement of claim as being an action based upon trespass and the
-punitive damages for breach of contract maintenance of a nuisance, claiming damages to their property including exemplary
-controversies surrounding punitive damage – in notes and punitive damages – inexcusable trespass w/o justification – punitive or
exemplary damages s/b awarded
Chapter 2 – Awards Measured by Benefit to the Defendant
-two remedies, the first equitable in origin and the second deriving from the common Chapter 3 – Damages for Breach of Contract
law, permit the plaintiff to recover on the basis of the gain accruing to the defendant -3 principle purposes, which may be pursued in awarding, contract damages.
rather than the actual damage sustained. (1) the plaintiff has in reliance on the promise of the defendant conferred some value
-United Australia Ltd v Barclays Bank: doctrine of merger does not prevent a on the defendant
plaintiff from recovering both an account of profits and damages other than those (2) the plaintiff has in reliance on the promise of the defendant changed his position
connected with profits (3) w/o insisting on reliance by the promise or enrichment of the promisor, we may
-Phillips v Homfray: defendants mining on plaintiffs property, seek to give the promise the value of the expectancy which the promise created
-restitution interest unites two elements: (1) reliance by the promise, and (2) a
resultant gain to the promisor
-Livingstone v Rawyards Co: any injury is to be compensated by damages – should injuries consequent on some pre-existing infirmity of the plaintiff are recoverable
receive sum of money which will put the party who has been injured or has suffered even if the infirmity is of a psychological nature
into the same position as he would have been if he had not sustained the wrong for -*psychological thin skill: must consider (1) timing, and (2) the nature of the alleged
which he is now getting his compensation psychological infirmity
-the plaintiff must establish on balance of probabilities that he has suffered a loss and
that loss has been caused by the defendant’s wrong 2. Unreasonable and Conflicting Medical Opinions
-Van Island Spar Lumbar: case depicts limits to the principle -Asamera Oil Corp: he is only bound to act like a ‘reasonable and prudent man’
[1] Remoteness 3. Consequences of unreasonableness
-H Parsons Ltd v Uttley Ingham: remoteness -duty to mitigate – plaintiff cannot recover from the defendants damages which he
-Czarnikow Ltd v Koufos: in case of breach of contract, court needs to consider himself could have avoided by taking reasonable steps
whether the consequences were of such a kind that a reasonable man, at time of
making contract would contemplate them as being a very substantial degree of [5] Anticipatory Breach
probability -one party’s intention to fail to fufil its contractual obligations to another party – ends
-Martin & Co: any pure economic loss suffered in addition to physical damage is counterparty’s responsibility to perform duties
unrecoverable as either too remote, or outside the scope of DoC -Snells Ltd v Thomson Stationary Co Ltd: in notes
[2] Loss of Profit [6] Personal Remedies
-Defaulting party is only liable for the consequences if they are at the time of -Wretheim v Chicoutimi Pulp Co: claim for damages by a buyer
contract; he ought reasonably to have contemplated as a serious possibility or real -Q: whether a defaulting buyer should be able to resist a market price claim, or a
danger similar claim for damages, by the seller on the ground that the seller’s cost of
production would have exceeded the contract price appears to be unsettled. If the
[3] Certainty and Causation compensatory basis of contract damages is taken to its logical conclusion, the
-may be necessary for plaintiff to prove, on balance of probabilities, that the tortious buyer’s defence should succeed unless the market price test is regarded as
act or omission was the effective cause of the harm suffered establishing a minimum, liquidated form of measure of damages. The reasoning in
-Snell v Farrell: during surgery there was a bleed, resulted in optic blindness Wertheim implicitly rejects such a characterization, as does our Draft Bill.
-Causation Principles: McGhee in a civil case, two broad principles: (1) that the onus
is on the party who asserts a proposition, usually the plaintiff; (2) where the subject [7] Collateral Benefits
matter of the allegation lies particularly within the knowledge of one party, that party -benefits entitled to receive for workplace injury
may be required to prove it -Ratych v Bloomer: no damages recoverable in respect for pay if continuation of pay
-Laferriere v Lawson: loss of chance – the cancer would have still killed the victim, -Cunningham v Wheeler: seeking to recover lost wages w/o deduction of their
thus no casual link between doctors negligence and death insurance or disability benefits
-Miller v Cooper: there should not be any deduction from any recovery for lost
[4] Mitigation wages.
-principle meaning is to refer to a plaintiff’s conduct that might have diminished the -Shanks v McNee: CoA decided that since the employees contributed 30% of the
loss cost of the premiums of the long term disability plan, those benefits were in the
-provocation: Landry v Patterson nature of insurance paid for by the employee and should not be deducted
-Janik v Ippolito: valuation of choice of loss – when victim refuses surgery, an -*ideal of compensation which is at the same time full and fair is met by awarding
intervening cause which cuts off the liability of the initial tortfeasor damages for all the plaintiff’s actual losses, and no more
-*double recover is not permitted
1. Unreasonable Refusal or Treatment -three main policy considerations to explain why a benefit should or shouldn’t be
-Steele v Robert George & Co: unreasonable refusal of treatment. deducted: (1) punishment (2) deterrence, and (3) the provision of incentives for
-thin skull doctrine: if the wrong is established the wrongdoer must take the victim as socially responsible behavior
he finds him.
[8] Time of Assessment
, -Robinson v Harman: where party sustains loss by breach of contract, he is to be -Whitwham v Westminster Brymbo Coal and Coke Company: plaintiff sued for an
placed in the same situation with respect to damages as if the contract had been injunction and damages, the defendant having trespassed on the plaintiff’s land by
performed tipping spoil onto it from its colliery
-Asmera Oil Corp: in order to seek specific performance, must have legitimate and -Attorney General v Blake: betrayed British secrets to the Soviet union, wrote
substantial interest – onus is on P to prove (2) there are special circumstances which autobiography – account of profits will be appropriate only in exceptional
render the P to not have a duty to mitigate, esp where a reasonable person would not circumstances – normally remedy of damages, specific performance and injunction,
put themselves at risk coupled w characterization of some contractual obligations as fiduciary are adequate
-Dodd Properties: in torts, person should be put in same position as far as money can response to breach of contract
do it, in the same place as if the tort had not been committed -awards Crown damages which equal the whole amount owed by Jonathan
-third party rights – in notes Cape to Blame. That is the remedy based on proprietary principles when
-Metropolitian Trust Co of Canada: agreement to land conditional, on the necessary proprietary rights are absent
obtaining the consent of the 2nd mortgagee -Robinson v Harman: rule of the common law is, that where a party sustains a loss
-Johnson v Agnew: written agreement to sell land by reason of a breach of contract, he is, so far as money can do it, to be placed in the
-Semelhago v Paramadevan: same situation, with respect to damages, as if the contract had been performed.
-damages for breach of contract are in a sense a substitute for performance – that is
[9] Mititgation, Efficient Breach, and Measure of Damages why they are considered an adequate remedy
-law is to require each party to choose between performing in accordance w the
contract and compensating the other party for any injury resulting from a failure to 1. Negotiating damages
perform -Wrotham Park Estate line of cases. These can be divided into two phases: (1) an
-Radford v DeFroberville: plaintiff sued for breach of contract to erect a boundary initial period in which awards based on a hypothetical release fee were made in the
wall on the defendant’s property exercise of the jurisdiction under Lord Cairns’s Act in substitution for injunctions to
-Miles v Marshall: dmgs are to be assessed as the diminution of the value of the prevent interferences with property rights and breaches of restrictive covenants over
property by reason of the non-repair. Dmgs are limited to the actual loss sustained land, and (2) later period in which awards calculated in a similar way were made at
by an injured party. common law on a wider and less certain basis.
(i) The first phase
[10] Punitive Damages -Wrotham Park Estate Co: The land was then developed as housing, the plans being
-defendant found guilty of committing a wrong or offense is ordered to pay on top of approved by the estate owners on the basis that a central area would remain free of
compensatory damages. Awarded by court to punish defendants whose conduct is buildings.
considered grossly negligent (ii) Attorney General v Blake: difficulty which he saw in the way of an award of
-Cassell & Co Ltd v Broome: sued appellants and author for damages for libel damages was that the Crown suffered no financial loss as a result of Blake’s
-Hill v Church of Scientology of Toronto: Punitive damages are awarded against a publication of book
defendant in exceptional cases for “malicious, oppressive and high-handed” -Townsview Properties Ltd: plaintiffs bring this action against the defendants, which
misconduct that “offends the court’s sense of decency” is described in the statement of claim as being an action based upon trespass and the
-punitive damages for breach of contract maintenance of a nuisance, claiming damages to their property including exemplary
-controversies surrounding punitive damage – in notes and punitive damages – inexcusable trespass w/o justification – punitive or
exemplary damages s/b awarded
Chapter 2 – Awards Measured by Benefit to the Defendant
-two remedies, the first equitable in origin and the second deriving from the common Chapter 3 – Damages for Breach of Contract
law, permit the plaintiff to recover on the basis of the gain accruing to the defendant -3 principle purposes, which may be pursued in awarding, contract damages.
rather than the actual damage sustained. (1) the plaintiff has in reliance on the promise of the defendant conferred some value
-United Australia Ltd v Barclays Bank: doctrine of merger does not prevent a on the defendant
plaintiff from recovering both an account of profits and damages other than those (2) the plaintiff has in reliance on the promise of the defendant changed his position
connected with profits (3) w/o insisting on reliance by the promise or enrichment of the promisor, we may
-Phillips v Homfray: defendants mining on plaintiffs property, seek to give the promise the value of the expectancy which the promise created
-restitution interest unites two elements: (1) reliance by the promise, and (2) a
resultant gain to the promisor
