Of course it's just a tree.  What does it look like ?
RDG online
Restitution Discussion Group Archives
  
 
 

Restitution
front page

What's new?

Another tree!

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Another tree!

 
<== Previous message       Back to index       Next message ==>
Sender:
Kalev Crossland
Date:
Tue, 27 Feb 2007 16:50:04 +1300
Re:
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)?


<== Previous message       Back to index       Next message ==>

" These messages are all © their authors. Nothing in them constitutes legal advice, to anyone, on any topic, least of all Restitution. Be warned that very few propositions in Restitution command universal agreement, and certainly not this one. Have a nice day! "


     
Webspace provided by UCC   »
»
»
»
»
For editorial policy, see here.
For the unedited archive, see here.
The archive editor is Steve Hedley.
only search restitution site

 
 Contact the webmaster !