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Stephen Watterson
Wed, 28 Feb 2007 11:49:08 +0000
Waiver of tort


Dear all,

Thanks for this reference, Duncan. This sounds more or less right re: the article. I'm also inclined to prefer your reading of the scenario presented by Kalev.

A key point made in the 2003 article was the need to separate the mischief(s) arising from cumulations of compensatory and gain-based damages, from the mechanism(s) appropriate for avoiding it/them.

It was sometimes assumed that you had to elect between the awards, because the remedies were inconsistent. The article suggested that this description of the mischief is unfortunate, and that a better description of the mischief in these cases is 'excessive remedial cumulations'. The article defined these as cumulations that would exceed the minimum necessary to achieve the law's remedial aims (compare 'double recovery', which is also dismissed in the article as an inapt description).

That insight leaves two questions:

(i) when exactly can a cumulation be said to be excessive in this sense?

(ii) how do you avoid such excessive cumulations, where you've identified them?

As regards (i): the article explained that one situation in which a cumulation would be 'excessive' (on almost everyone's understanding of the aims of compensatory and gain-based awards) is where the awards are made for the same wrongful conduct of the defendant. A fuller and more refined consideration of this question, including the question whether a cumulation might be regarded as 'excessive' even where the awards are not made for the same wrongful conduct, was to be dealt with in (owing to other distractions, still pending!) later publications.

As regards (ii): once you've identified that a cumulation would be 'excessive', the law cannot allow full recovery of both awards to that extent. But the article noted that there are a range of mechanisms which the law could choose to adopt to achieve the outcome. The only thing the law MUST incorporate is a single, minimum prohibition: a court should not allow a claimant to recover, or hold a defendant liable to pay, an amount exceeding that which is required to achieve the law's remedial aims. However, that minimum prohibition can be given practical effect (and, on examination, has been given practical effect) in a number of different ways.

So, in particular:

(a) you might require the claimant to elect between awards (pre- or post-quantification);

(b) you might leave it to the court to offset/adjust the awards; or

(c) the court might make both awards in full, subject to the proviso that recovery pursuant to one award will preclude recovery under the other.

The choice is practical, not logically determined. The article observed that where the compensatory and gain-based awards are claimed from the same claimant, courts have adopted (a) or (b); whereas where the awards arise against multiple defendant, the more likely response is (c).

(This same issue is also dealt with in S Watterson, 'An Account of Profits or Damages? The History of Orthodoxy' (2004) OJLS 471, re-examines the IP orthodoxy that you have to make an informed, pre-quantification election).

Hope this helps.


Best wishes


Stephen Watterson
School of Law
Wills Memorial Building
Queen's Road
Bristol BS8 1RJ

Work no: 0117 954 5349


Date: 28 February 2007 09:36 +0000
From: "Duncan Sheehan (LAW)"
Subject: Re: [RDG] ODG: Waiver of tort[Scanned]

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.

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