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Duncan Sheehan
Wed, 28 Feb 2007 09:36:38 -0000
Waiver of tort


Dear all,

For those who do not know, the article Kalev refers to (I assume) is Stephen Watterson 'Alternative and Cumulative Remedies: what is the Difference?' [2003] RLR 7. Stephen will have to correct me if I'm wrong about his argument, but I think in Kalev's nuisance example of the construction of the stopbank, the injured farmer can recover the higher of the defendant's profits, or the claimant's loss. Excessive remedial cumulations refer to the requirement that the remedies not exceed the minimum necessary to achieve the law's remedial aims. A remedy directed at compensating loss may indirectly achieve the aims of restitution. The upshot is that where compensatory and gain-based damages are available for the same wrongful conduct (as here, the construction of the stopbank and consequent diversion of the water) they are alternatives - both are not available in full measure. That of course assumes (like Kalev does) that disgorgement (account of profits) is available for nuisance - which is, I guess, another can of worms altogether.


Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

From: Kalev Crossland
Sent: Tuesday, February 27, 2007 8:03 PM
Subject: Re: [RDG] ODG: Waiver of tort[Scanned]

For John – the reference to the trespass case is below. The conceptual furniture is reasonably well arranged in this case although articulated in orthodox damages type language. As with many ex British colonial jurisdictions the case contains a useful summary of English case law (on the user principle).

Waugh (No 2) v. A-G [2006] 2 NZLR 812.

For a useful discursive academic article by William Swadling on restitution for tortious wrongs see "The Myth of Phillips v Homfray" published in The Search for Principle Ė Essays in Honour of Lord Goff of Chieveley (OUP, eds. Swadling and Jones).

Another interesting point is the question of election before judgment of a restitutionary remedy over a loss based damages award. Most Commonwealth judges assume because of the PCís decision in Tang Min Sit v. Capacious Investments that it is one or the other. I recall seeing an academic article a few years ago suggesting that a better policy response was a rule against excessive remedial combinations. In my nuisance case the damage to the plaintiffs and the gain to the defendant were unconnected in the sense that there was no equivalence in value nor in identity. Accordingly logic would suggest that if you wreck my farmís infrastructure through water diverted onto my land that would normally travel down a floodplain and onto your farm by your stopbank erected on your boundary to keep water of your own farm and thus concurrently damage me and make greater returns (in a non stopbank situation) then you should account to me for your profit (restitution for gain based on the wrong of nuisance) as well as paying me to fix the fences and resowing of grass etc. This example I believe shows the fallacy in such election and the sense in the policy being a rule against excessive remedial combinations.

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