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References (67)
-
Whitwham v Westminster Brymbo Coal and Coke Company [1896] 1 Ch 894, 899, upheld: ibid. 245 Some authority suggests "use -
Meering v Grahame-White Aviation Co (1919) 122 LT 44 -
See also Loudon (n153): £1,500 awarded for trespass to land (not being "user" damages), the only factual damage being the shattering of a small window -
(2007)
For a thorough-going critique of the transfer-of-value idea see: Craig Rotherham -
Swordheath (n214) -
Above (n37) -
Linda Pearson, Michael Taggart, C. Harlow (2008)
Administrative law in a changing state : essays in honour of Mark Aronson -
The reasonable man of the law is naturally also a freeman. Freedom in the conception of the Common Law is a thing native to man as man -
(2001)
See the ambiguous dicta in A-G v Blake -
Swordheath ibid -
(2011)
Bunnings v CHEP Australia Ltd -
McInnes (n222) 81, 85; Stevens (n3) 67-68 -
See Ogus (n118) 23; Burrows (n118) -
Above (n210) -
(1952)
QB 246; Whitwham v Westminster Brymbo Coal and Coke Company [1896] 2 Ch 538 -
Burrows (n220) -
See similarly Rotherham (n217) 43-44; for the locus classicus see: Hohfeld 1917 (n8) -
Gain, Loss and the User Principle -
At this point the "[i]nquiry has become a subjective one -
(2007)
Sempra Metals Ltd v IRC -
Lumba (n2) -
See Giliker (n145) -
(1963)
Penarth Dock Company v Pounds -
Weir 2006 (n1) 138. Although, liability is stricter for trespass to land -
P. Birks (1985)
An introduction to the law of restitution -
(2011)
It is difficult to find modern MIPO cases where exemplary damages have been awarded: Mark Aronson -
Where the vessel is profit-earning one may also recover loss of profits: Burrows (n118) -
(1998)
The Staggering March of Negligence -
E. Weinrib (2012)
Gain-based Damages -
Ramanoop (n33) -
Jp, C. (2013)
Presumed General Compensatory Damages in Constitutional Tort Litigation : A Corrective Justice Perspective -
(2011)
As is accepted by those who argue that restitutionary damages ought to be available generally: James Edelman -
Burrows (n118) -
AC 19; R(Sessay) v South London and Maudsley NHS Trust -
(1993)
All ER 54; AB v South West Water Services Ltd -
High Court QBD (NI) (£45 for five minutes) -
Wrotham Park Damages' and Accounts of Profits: Compensation or Restitution? -
See similarly Giglio (n234) 64. that be a compensation? I cannot say that it would be -
Rookes (n207) -
Shepherd (n119) 365 -
Mesne Profits and Restitutionary Damages -
A. Tettenborn (1994)
Law of Restitution -
(2013)
000 awarded where the illegality arose from the claimant being detained in prison whereas there was only lawful authority to detain in hospital) -
(2002)
461; TCN Channel Nine Pty Ltd v Anning -
(2001)
Rep 359, 361; Enfield LBC v Outdoor Plus Ltd -
R. Sharpe, S. Waddams (1982)
Damages for lost opportunity to bargainOxford Journal of Legal Studies, 2
-
Contrast Holt CJ's conception of actions on the case: "this action is trespass on the case, to have recompense for a consequential damage -
Merest itself the defendant trod on the claimant's grass, and could therefore be said to have caused minor factual damage -
Hague (n66) 177. The position is the same in battery: Trindade (n65) -
Son v British Car Auctions -
Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 667. Instead, there are varying causal requirements, depending upon the basis and purpose of liability -
See the infusion of restitutionary analysis in: Ashman (n209) -
(1941)
United Australia Ltd v Barclays Bank Ltd -
Indeed the artificiality argument at times appears to be restitution theorists' only argument; see for example Edelman (n217) 67-68, 115 -
(2009)
Takitota v Attorney General of The Bahamas -
McInnes (n222) -
Moeliker v Reyrolle & Co [1977] 1 WLR 132, 137; Page v London Transport Board -
Lumba ibid -
There are exceptions, as in cases of negligently-inflicted psychiatric illness -
(2008)
Devenish Nutrition Ltd v Sanofi-Aventis SA -
after observing that "a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindred of his right" said -
Such formulations could conform with non-Hohfeldian conceptions of rights, such as Raz's conception of rights as grounds for duties (Raz 1986 (n15) ch 7) -
23] (subjective devaluation has "no part to play in the quantification of damages for trespass -
Francesco Giglio (2007)
The Foundations of Restitution for Wrongs -
See Outdoor Plus (n214) -
Whitwham (n244) -
) unreported; Court of Appeal Civil Division, transcript no 432/81 (second to last paragraph of Cumming-Bruce LJ's judgment)
- Publisher
- Oxford University Press
- Copyright
- The Author 2014. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
- ISSN
- 0143-6503
- eISSN
- 1464-3820
- DOI
- 10.1093/ojls/gqt036
- Publisher site
- See Article on Publisher Site
Abstract
This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails attesting to, affirming and reinforcing the importance of those interests that are the subject of the laws protection and their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies across torts; the torts actionable per se are paradigm examples of torts that have vindication as their primary function.The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages. It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is normative in nature, are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical, emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication and non-compensatory damages, including the novel head of vindicatory damages.
Journal
Oxford Journal of Legal Studies – Oxford University Press
Published: Jun 28, 2014
Keywords: tort damages trespass false imprisonment defamation battery