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Kalev Crossland
Tue, 27 Feb 2007 16:50:04 +1300
Waiver of tort


Dear All

I am a very irregular contributor to the group but the current discussion piqued my interest due to acting in a nuisance action where flooding was kept off a farm from a stopbank on the defendant’s resulting that farm being much more profitable than before the stopbank went up. Water went elsewhere onto neighbouring farms causing a nuisance.

Whilst not especially well known in some jurisdictions such as my own (NZ) my understanding is that gain based relief in tort is conceptually sound. It just does not come up so often because normally the defendant has not gained – rather the defendant has to pay for the injury to the plaintiff. But for some torts – particularly proprietary ones, such as nuisance where the plaintiff has not suffered any provable loss (or the loss is not equivalent to the gain by the wrongdoer) but the defendant has made some sort of profit from his or her wrongful act then the Court can strip that profit out from the defendant on that basis that one cannot profit for a wrong. Graham Virgo’s recent edition book has a couple of very good chapters on this.

A recent case in trespass here in NZ (defendant tunneling under plaintiff’s land) had a plaintiff awarded a notional lease payment despite not having suffered any loss. I can dig out the reference if anyone is interested.


Kalev Crossland


From: Lionel Smith, Prof.
Sent: Tuesday, 27 February 2007 3:32 p.m.
Subject: Re: [RDG] ODG: Waiver of tort

I’m confused; did anyone say there can’t be a gain-based claim in tort (as opposed to arguments about whether specific torts (especially negligence) will support it)?

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