Damages
Disputes & Litigation

Damages are a pecuniary remedy. Damages are principally compensatory in nature such that a claimant is placed in the position they would have been if the act or omission that was contrary to law had not taken place. Damages are sought by claimants in litigation, and the remedy seeks to compensate the innocent party in money for the losses suffered by the particular breach of the law.

Particular rules for assessment of damages apply depending on the area of law that the plaintiff has established liability in the defendant. For instance, damages for breach of contract are assessed with the reference point of the date of the contract; in tort, damages are assessed as at the date of the tort was committed; in the infringement of intellectual property rights, damages are awarded for the losses sustained by the intellectual property rights owner with reference to the misuse of the intellectual property rights without the consent of the owner.

Contract Damages

Damages in breach of contract disputes are assessed with reference to the minimum legal obligations under the contract. Where loss cannot be proved, the claimant is only entitled to nominal damages.

The interests that are recoverable are expectation, reliance, performance and restitutionary interests. Expectation interests pertain to the benefits which the claimant would reasonably expect to receive from a proper performance of the contract without breach, but were lost due to the breach of contract by the defendant. The reliance interest sounds in the expense or loss incurred by the claimant in preparing to perform the contract which has been wasted due to the failure to perform by the defendant. The performance interest in damages is reflected in the interest in performance which is readily recognised in terms of money.

Claimants are not entitled to recover damage that is too remote or damage that they have failed to mitigate.

Intellectual Property Damages

Damages claims are also able to be made under copyright legislation. For instance, additional damages, which are damages over and above the usual measure may be awarded on a discretionary basis where some benefit has been obtained by the infringer, or there has been a blatant disregard for the rights' owners legal entitlements.