Legislation in all Australian jurisdictions allows courts to award damages either in addition to, or in lieu of, specific performance or an injunction. Although damages awarded under this legislation are sometimes known as ‘equitable damages’, to avoid confusion with equitable compensation, they are called ‘Lord Cairns’ Act damages’ in this book.

Lord Cairns’ Act damages are primarily awarded for proprietary torts such as trespass, and for breaches of contract or negative covenant where no other relief is available (either because it is impossible or for discretionary reasons). Their calculation varies according to the facts of the individual case, and the rules are complex. They have also been awarded for equitable or statutory wrongs, but this is controversial.

As noted in this chapter, the placement of this remedy within a functional structure presents difficulties. Lord Cairns’ Act damages have been said to perform multiple functions including compensation and restitution. Strictly speaking, they do not compel performance, but award money instead. However, because they are a monetarised version of specific relief, they follow specific performance and injunctions for the pragmatic reason that they ‘fit’ best here.

This chapter considers self-help remedies, which involve the plaintiff making good her own rights without the intervention of the judiciary. The focus of this book is on remedies that are awarded pursuant to a judicial order. However, an exclusive consideration of judicial remedies would ignore the fact that most disputes are settled outside the courts and that most parties prefer non-judicial settlements. It may be queried whether self-help remedies are really remedies in the strict sense of the word. They do not involve a court order; instead, the court gives permission to a plaintiff to act in a particular way. Nevertheless, in a broader sense, the plaintiff is allowed to redress her grievance by vindicating her own rights. By allowing a plaintiff to redress her rights in this way, the law affirms and reinforces the importance of certain interests. As noted in Ch 13, Varuhas has observed that the interests protected by vindicatory awards are often associated with the torts actionable per se.

The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.

Most of the remedies discussed in this book are personal remedies (apart from the proprietary consequences of rescission). Personal remedies, as the name suggests, are directed at the person of the defendant. The defendant must comply with the court order. By contrast, proprietary remedies are directed at property to which the defendant holds title, not to the person.

Proprietary remedies are difficult to allocate on a functional basis. We have not attempted to do so, as the rationales behind the imposition of proprietary remedies vary, and the criteria for their award are uncertain and contested.

It should be noted at the outset that this chapter does not purport to provide an exhaustive account of proprietary remedies. It is presumed that the reader already has a knowledge of trust law and the principles governing the creation of trusts and equitable liens. What follows is an overview from a remedies perspective.

The availability of proprietary remedies in common law is limited. Even where the defendant has committed a proprietary tort, the common law tends to award damages as a remedy. There is no rei vindicatio, or ability of a plaintiff to demand the return of property from a defendant, at common law. Consequently, the proprietary remedies we discuss in this chapter are equitable in origin.

A contract may be breached by one party (the defendant) through defective performance, delayed performance, or a total failure to perform. If the contract breached is enforceable at common law, the innocent party (the plaintiff) can generally claim common law damages for any loss suffered as a result of the breach. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for breach of contract are discussed in this chapter: the assessment of damages and the attribution of responsibility.

The victim of a tort can generally claim compensatory damages for any loss suffered as a result of the tort. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for tort are discussed in this chapter: the assessment of damages and the attribution of responsibility. The assessment of compensatory damages for personal injury, which are usually claimed in tort, is discussed.

In this chapter, we consider exemplary damages and aggravated damages, remedies with a strong vindicatory flavour, as recognised by the High Court of Australia in Lewis v Australian Capital Territory.

Exemplary damages vindicate the plaintiff’s interests, but also explicitly punish the defendant for the wrong in question. Punishment is not commonly recognised as a central aim of private law. Some commentators have argued that it should not be part of private law. However, exemplary damages are said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong. Such damages also perform a vindicatory function. The fact that the law punishes a defendant for the manner of his interference with the plaintiff’s interests signals the importance of those interests.

This chapter explores rules on compensation that are peculiar to cases involving personal injury or death. The wrongful act is usually a tort, but it may also be a breach of contract1 or a statutory wrong. It is assumed that the claim is not excluded by statute; some exclusions are mentioned. This chapter does not discuss rules on compensation that apply to personal injury as well as other types of harm. Those rules are discussed in Part 1 and in the other chapters of Part 2. Furthermore, this chapter, like the rest of Part 2, is concerned only with ‘normal’ compensation. Aggravated damages, which may be awarded in cases of personal injury (and other cases), are discussed in Ch 15.

In this chapter, we consider other forms of remedies which seek to vindicate the plaintiff’s rights by a public statement of those rights, including declarations and awards of nominal damages and apologies. The court may make a public statement of rights (as with declarations) or the defendant himself may be compelled to make the statement (as with apology orders). We first consider apologies, then declarations, nominal damages and contemptuous damages, and then finally other vindicatory awards available under the Australian Consumer Law.