the remedies available in civil law, including damages and equitable remedies such as injunctions and specific performance

What this dot point is asking

QCAA wants you to know what a court can do for a successful plaintiff in a civil claim: the main remedy (damages) and its categories, the equitable remedies available where damages are inadequate, and how Queensland limits some awards. The aim of a civil remedy is to compensate, not to punish. Expect a 3-5 mark short response in IA2.

The answer

The purpose of civil remedies

A civil remedy is the court order that resolves a successful claim. Unlike a criminal sanction, which punishes, the primary purpose of a civil remedy is to restore the plaintiff to the position they would have been in had the wrong not occurred. The plaintiff must prove the claim on the balance of probabilities to obtain a remedy.

Damages

Damages are an award of money and are the most common remedy. The main categories are:

• Compensatory damages aim to compensate the plaintiff for actual loss. In contract, damages aim to put the plaintiff in the position they would have been in had the contract been performed (expectation loss). In tort, damages aim to put the plaintiff in the position they would have been in had the wrong not occurred. Compensatory damages cover both economic loss (medical expenses, lost income) and non-economic loss (pain and suffering, loss of amenity).
• Nominal damages are a small sum awarded where a legal right has been infringed but no real loss is proved.
• Aggravated damages compensate for additional harm to the plaintiff's feelings caused by the manner of the wrong.
• Exemplary (punitive) damages are awarded in rare cases to punish and deter particularly outrageous conduct. They are exceptional, and are not available in personal injury claims under the Civil Liability Act 2003 (Qld).

The plaintiff has a duty to mitigate loss, that is to take reasonable steps to reduce the loss. Damages will not be recovered for loss that could reasonably have been avoided. Damages will also not be recovered for loss that is too remote.

Statutory limits on damages in Queensland

In personal injury claims, the Civil Liability Act 2003 (Qld) Part 3 caps and regulates damages. It caps general damages for non-economic loss using an injury scale value, imposes rules for calculating past and future economic loss, and excludes exemplary, punitive and aggravated damages for personal injury (s 52). These reforms followed the 2002 Ipp Report.

Equitable remedies

Where damages are an inadequate remedy, a court may grant a discretionary equitable remedy. The main equitable remedies are:

• an injunction, a court order requiring a party to do something (a mandatory injunction) or to stop doing something (a prohibitory injunction). An interlocutory injunction preserves the position until trial;
• specific performance, a court order compelling a party to perform their contractual obligations. It is typically ordered for contracts involving unique subject matter, such as the sale of land, where damages would not adequately compensate;
• rescission, which sets aside a contract and restores the parties to their pre-contractual position, available for example for misrepresentation or undue influence;
• rectification, which corrects a written document that does not reflect the parties' true agreement.

Equitable remedies are discretionary. A court may refuse them on equitable grounds, for example where the plaintiff has delayed unreasonably or has not come to the court with "clean hands".

Other orders

A court may also make declaratory orders (a declaration of the parties' legal rights) and orders for costs (usually the unsuccessful party pays a portion of the successful party's legal costs).

Examples in context

Example 1. Specific performance for the sale of land. A vendor agrees to sell a particular block of land but then refuses to complete the sale. Because land is unique, damages would not adequately compensate the buyer. A court may order specific performance, compelling the vendor to transfer the land, rather than merely awarding damages.

Example 2. Capped general damages in a Queensland negligence claim. A plaintiff injured in a public liability accident proves negligence on the balance of probabilities. The court awards compensatory damages for medical costs and lost income. General damages for pain and suffering are calculated using the injury scale value under the Civil Liability Act 2003 (Qld) Part 3, which caps the award, and no exemplary damages are available because s 52 excludes them for personal injury.

Try this

Q1. State the primary purpose of a civil remedy and contrast it with a criminal sanction. [3 marks]

• Cue. A civil remedy aims to compensate and restore the plaintiff to their original position. A criminal sanction aims to punish, deter and protect the community.

Q2. Distinguish between compensatory damages and exemplary damages. [3 marks]

• Cue. Compensatory damages compensate for actual loss. Exemplary (punitive) damages are rare and punish outrageous conduct; they are excluded for personal injury in Queensland under the Civil Liability Act 2003 (Qld) s 52.

Q3. Explain when a court would order specific performance rather than damages. [4 marks]

• Cue. Specific performance is an equitable remedy granted where damages are inadequate, typically for unique subject matter such as the sale of land. It is discretionary and compels performance of the contract.