Civil Remedies

1. Civil Remedies Key knowledge • The purpose of civil remedies • Type of civil remedies, including damages and injunctions Key skills • Discuss the ability of civil remedies to achieve their purposes What do you need to do/know: • What are the aims of civil remedies? • Can you define damages (including the different types) – when is this remedy used? • Can you define injunctions– when is this remedy used? • What are the purposes of damages/injunctions?

2. Purpose and types of remedies Purpose • To restore an individual/group whose rights have been infringed back to their original position • The aim of taking a civil action is to seek a remedy Types of remedies • Damages (including compensatory, exemplary, aggravated, nominal and contemptuous) • Injunctions • Costs and interest • Order of specific performance • Restitution

3. Damages • Damages are the most common type of remedy • Involve payment of a sum of money from the defendant to the plaintiff • Amount varies accordingly to the circumstances e.g. the type of loss suffered

4. Compensatory damages • Damages awarded that aim to compensate the plaintiff for loss suffered (as much as money can do that) • Purpose is to restore plaintiff to their original position (but may not be possible in cases of physical injury) • Two types: • Special/specific damages: a set amount that relates to an identifiable cost, such as medical bills or loss of income (e.g. You slip over in the school grounds and injure your leg. The cost of medical treatment for this injury could be paid as specific damages by the school.) • General damages: an amount of money that cannot be linked to a specific loss/cost, for example, pain and suffering (e.g. In the situation above, you might also be paid an additional amount for your pain and suffering)

5. The Wronged Man • Remember the documentary ‘The Wronged Man’, where Andrew Mallard was award $3.25 million in compensation by the WA Government for his wrongful conviction. This is an example of an ex gratia payment (i.e. payment where there was no obligation/legal requirement to pay). In this case, there was no specific loss that could be measured, so the amount is like general damages. • Read this article to see what Mr Mallard’s response to this payment was: http://www.watoday.com.au/wa-news/andrew-mallard-gets-325-million-20090505-atjl.html and how the government decided on this figure. Do you think he would have got more if he had taken legal action? What factors might be considered?

6. Nominal damages • A small amount of money is paid by way of damages, as the plaintiff’s main aim in taking action was to prove a point • Purpose is to make a point about being in the right • (This wouldn’t happen very often because the cost of legal proceedings would deter most people from taking this kind of action.)

7. Exemplary damages • Three purposes: • To punish • To show disapproval of action • To deter others from behaving in the same way • Usually a large sum of money • Exemplary = to make an example of someone or something • Check out this article on the David Jones sexual harrassment case of a couple of years ago:http://www.smartcompany.com.au/legal/039682-20100803-david-jones-37-million-sexual-harassment-claim-shocks-business-world-but-us-style-damages-payout-unlikely-2.html

8. Aggravated damages • Additional compensation paid for humiliation or insult suffered, or injured feelings as a result of the defendant’s conduct • Purpose is punish the defendant for their lack of regard for the plaintiff • Defendant has shown a reckless disregard for the plaintiff’s welfare • Harm is ‘aggravated by the way in which the act was done’

9. Injunctions • The purpose of an injunction is to prevent a person from taking an action or to force them to take a particular action in order to rectify a situation • Restrictive/prohibitive = orders a person to refrain from doing something • Mandatory = orders a person to do something • For example, an injunction could be granted to prevent a party to divorce proceedings from selling property, or to prevent publication of defamatory article. • Interim injections are short term; Perpetual injunctions are permanent

10. Other remedies • The study design only requires that you know damages and injunctions. Read pp 351-353 of the textbook for an overview of other civil remedies.

11. Sample question One purpose of damages as a civil remedy is to restore the plaintiff to the position that he or she was in before wrong occurred. Discuss the extent to which damages achieves this purpose. (4 marks) This question requires you to consider ‘the extent to which damages achieve this purpose’; therefore, do damages achieve to a great extent the restoration of a plaintiff to the position he or she was in before the wrong occurred? Or do damages achieve this purpose in some circumstances but not in others? Do other remedies achieve this purpose better in some circumstances? Bring your answer to class on Tuesday.