Kit Barker draws to my attention a very interesting decision of the NSWCA in
Bunnings Group Ltd v Chep Australia.
The defendants were liable to the plaintiffs for the conversion of a number of pallets. The plaintiffs were in the business of hiring out pallets and at all times had more pallets than they needed to carry out their business. The defendants argued that
as a result the plaintiffs had no loss pleaded or proven as a result of the conversion, nominal damages only should be payable. The interesting bit is at [174]-[175] where they consider the award of damages in cases such as
Strand Electric:
- Stability of approach, especially in a field directly related to commercial law should be maintained. It is unnecessary to discuss the extent to which a degree of re-adjustment
in taxonomy is required by reference to notions of restitutionary damages (cf McGregor op cit Ch 12). Rules of compensatory damages, sensibly and flexibly applied, are adequate to explain the theoretical and practical positions, without any extension
of principle involving the award of the wrongdoer's profit as a remedial consequence of the commission of a tort.
- The fundamental principle of damages for tort is compensation for loss caused: Butler v Egg & Egg Pulp Marketing Board [1966]
HCA 38; 114 CLR 185; and Haines v Bendall [1991]
HCA 15; 172 CLR 60 at 63. The damage or loss caused to the plaintiff with rights of ownership and possession
who is in the business of hiring goods of the kind converted or detained is not limited to the consequences of stock depletion or to cost of replacement, but incudes the denial and infringement of its rights. Those rights have been denied to the plaintiff
by the commission of a tort involving the use of the goods by the tortfeasor. It is entirely logical and in accordance with justice and commonsense that a wrongdoer should pay a price for using the goods of another as a matter of compensation for the denial
of the right concerned. I do not see this as contrary to, or undermining of, the principle of compensation.
Substantial damages payable.
I agree, as anyone familiar with my own musings on these matters knows.
Rob