Wrongs and Remedies in the Twenty-First Century

By Peter Birks | Go to book overview

9
Restitutionary Damages

HARVEY MCGREGOR, Q.C., D.C.L.


1. RESTITUTION AND DAMAGES

It may seem strange, even perverse, for one who has been asked to write on restitutionary damages to start by saying that he does not believe in the concept; but I do not. In my lexicon there is 'restitution' and there is 'damages'. I do not say that never the twain shall meet for they meet, and overlap, all the time. But they are entirely different concepts: one deals with assuring compensation for loss to a plaintiff, the other with extracting a benefit from a defendant. Damages should be restricted to compensation for loss. That is what damages are about -- damages for damage in our law, for damnum in Roman law, for dommage or dommage-interêts in French law. Restitutionary damages are not concerned with compensation for loss. 'The suggestion', says Burrows, 'that damages can be restitutionary will appear to many as a heresy';1 I am one of the many. Damages, it is of course argued, are not always concerned with compensation for loss-look at nominal damages and exemplary damages. However nominal damages, regarded as being available for every breach of contract and for those torts actionable per se, are not really damages at all; they are damages in name only and are so described. They are indeed not needed: neither as a peg on which to hang costs since costs are now in the court's discretion in all cases, nor as a manner of asserting a right since this can be achieved, where required, by an action for a declaration. As for exemplary damages they were rightly regarded as an anomaly by the House of Lords in Rookes v Barnard2 and effectively outlawed. Of the two exceptions that have for reasons of conservatism been retained -- the statutory exception can be ignored as statutes seldom if ever specifically provide for exemplary damages -- one is indeed explainable in terms of restitution3 and, though after a quarter century of being ignored the other has recently come to life, awards can be rationalised on the ground of aggravated damages as compensation for injured feelings. I trespass of course since these exceptional measures of

____________________
1
Burrows, Remedies for Torts and Breach of Contract ( ed. 2, 1994), p. 293.
2
[ 1964] A.C. 1129.
3
Recognised as being 'analogous to the civil law concept of enrichessement indue' by Lord Diplock in Broome v Cassell & Co. [ 1972] A.C. 1027 at 1129B.

-203-

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