1: Introduction

Ⅰ The Law of Obligations

Ⅱ The Law of Damages

Ⅲ Desirability of a Harmonised Measure of Damages

Ⅳ Possibility of a Harmonised Measure of Damages

Ⅴ The Methodology Adopted in this Book

Part 1: Remoteness of Damage

2: The Present Remoteness Test in Tort

Ⅰ Terminology

Ⅱ The Foreseeability Criterion in Negligence

Ⅲ Damage Versus Risk

Ⅳ Degree of Foresight Required

Ⅴ The 'Thin Skull' Rule

Ⅵ The 'Scope of the Duty' Concept

Ⅶ Torts other than Negligence

3: The Present Remoteness Test in Contract

Ⅰ Hadley v Baxendale

Ⅱ Victoria Laundry

Ⅲ The Heron II

Ⅳ Parsons

Ⅴ SAAMCO

Ⅵ Brown v KMR Services Ltd

Ⅶ Jackson v Royal Bank of Scotland plc

Ⅷ The Achilleas

Ⅸ Conclusion

4: A Uniform Remoteness Test throughout the Common Law

Ⅰ Contract and Tort Compared

Ⅱ Reforming both Contract and Tort

Ⅲ Reforming Tort Only

Ⅳ Aligning Contract with Tort

A The Fairness Argument

B The Efficiency Argument

C Objections to the Efficiency Argument

i Prohibitive Costs

ii Monopoly Situations

iii Strategic Dilemma for Reliable Carriers

iv Possibility of Menu

D Preventing Unreasonable Reliance upon Performance

E Contractual Liability is Generally Strict

F Conclusion

5: Remoteness of Damage in Equity

Ⅰ Misapplication of Trust Property

Ⅱ Breach of an Equitable Duty of Care and Skill

Ⅲ Breach of Fiduciary Duty

Part 2: Non-Pecuniary Loss

6: Non-Pecuniary Loss in Tort

Ⅰ Loss Resulting from Personal Injury

Ⅱ Physical Inconvenience or Discomfort

Ⅲ Loss of Reputation

Ⅳ Mental Distress

Ⅴ Bereavement

7: Non-Pecuniary Loss in Contract

Ⅰ Overview of the Present Law

Ⅱ The General Bar to Compensation

Ⅲ The Exception for Personal Injury

Ⅳ The Exception for Physical Inconvenience

Ⅴ The 'Object of the Contract' Exception

Ⅵ Loss of Reputation

Ⅶ Need for Reform

Ⅷ Defensibility of the General Bar to Compensation

A Avoiding Punishment

B Avoiding Excessive Awards

C General Remoteness of Non-Pecuniary Loss

D Assumption of Risk

E Difficult Assessment

F Lower Cost of Contracting

G Avoiding a Flood of Claims

H Avoiding Bogus Claims

Ⅸ Way of Reform

8: Non-Pecuniary Loss in Equity

Ⅰ Breach of Confidence in Its Core Meaning

Ⅱ Breach of Confidence in Its Extended Meaning ('Breach of Privacy')

Ⅲ Other Equitable Wrongs

Part 3: Contributory Negligence

9: Contributory Negligence in Tort

Ⅰ The Position Apart From the1945 Act

Ⅱ The Ambit of the 1945 Act

Ⅲ Causation

Ⅳ The Claimant's Fault

Ⅴ Damage

Ⅵ Apportionment

10: Contributory Negligence in Contract

Ⅰ The Position apart from the 1945 Act

Ⅱ The Impact of the 1945 Act—Overview

Ⅲ Breach of a Duty of Care Co-Extensive in Contract and Tort

Ⅳ Breach of a Purely Contractual Duty of Care

Ⅴ Strict Contractual Liability—The Present Law

Ⅵ Need for Apportionment in Cases of Strict Liability

A Resorting to Causation Doctrine

B Resorting to Remoteness Doctrine

C Resorting to Mitigation Doctrine

Ⅶ Defensibility of Denying Apportionment in Cases of Strict Liability

A No Duty to Supervise the Defendant

B Distribution of Blame is Difficult

C Uncertainty

D Inequalities of Bargaining Power

Ⅷ Way of Reform

11: Contributory Negligence in Equity

Part 4: Gain-Based Relief

12: The Present Law of 'Restitution for Wrongs'

Ⅰ Terminology

Ⅱ The Inclusion of Hypothetical-Fee Awards

Ⅲ Equity

A Breach of Fiduciary Duty

B Breach of Confidence Including Breach of Privacy

Ⅳ Tort

A Historical Development

B Wrongful Interference with Goods

C Trespass to Land

D Intellectual Property Wrongs

E Nuisance

F Deceit and Fraud

Ⅴ Contract

A Hypothetical-Fee Award ('Wrotham Park Damages')

B Account of Profits ('Blake Damages')

13: The Proper Scope of 'Restitution for Wrongs'

Ⅰ Existing Theories

A Birks

B Edelman

C Friedmann

D Jackman

E Jaffey

F Tettenborn

G Weinrib

H Worthington

Ⅱ The Significance of Exclusive Entitlements

Ⅲ Exclusive Entitlements Erga Omnes

A Tangible and Intangible Property

B Bodily Integrity

C Reputation

D Informational Rights

Ⅳ Exclusive Entitlements Inter Partes

A Contractual Right to Have Property Transferred

i Land and Intangible Property

ii Specific Chattel

iii Generic Goods

B Contractual Right to Be Treated As the Owner of Certain Property

C Contractual Right to Someone Else's 'Labour Power'?

D Right to the Loyalty of One's Fiduciary

Ⅴ Situations in Which 'Restitution for Wrongs' is Inappropriate

A Deceit

B Skimped Contractual Performance

Ⅵ Exclusive-Entitlement Theory and Present Law Compared

Part 5: Exemplary Damages

14: The Present Law of Exemplary Damages

Ⅰ Terminology

Ⅱ Rookes v Barnard

Ⅲ Abuse of Power by Civil Servants

A Conduct Required

B Status of the Defendant

C Criticism

Ⅳ Profit-Seeking Behaviour

A Fields of Application

B Criticism

Ⅴ Statutory Authorisation

Ⅵ The 'Cause of Action' Test

Ⅶ Exemplary Damages in Contract

Ⅷ Exemplary Damages in Equity

Ⅸ Need for Reform

15: Objective of Exemplary Damages

Ⅰ Penalising Reprehensible Behaviour

Ⅱ Fostering Efficient Deterrence

A Correction for Undercompensation

B Correction for Underenforcement

C Correction for Court Errors

D Offsetting Illicit Benefits and Exceptional Costs

E Encouraging Negotiations about the Use of Rights

F Conclusion

16: Defensibility of Confining Exemplary Damages to Tort

Ⅰ Defensibility of Banning Exemplary Damages from Contract

A Theory of Efficient Breach

B Objections to the Theory of Efficient Breach

C Relevance of the Theory of Efficient Breach

D Inducement of Breach

E Cost of Contracting

F Crucial Differences between Contract and Tort

G Conclusion

Ⅱ Defensibility of Banning Exemplary Damages from Equity

A Is Punishment a Traditional Objective of Equity?

B Should Exemplary Damages be Available in Equity?