Restitution Discussion Group Archives
| Sender: |
Andrew Burrows |
| Date: |
Mon, 8 May 2006 09:36:34 +0100 |
| Re: |
Waiver of Tort |
I am puzzled by John McCamus' point. My understanding
of the parasitic theory is that the wrong (be it tort or equitable wrong
or breach of contract) is the cause of action and hence a necessary condition
for disgorgement (although one may, on the facts, be able, alternatively
to make out another cause of action eg the cause of action of unjust enrichment).
But that does not mean that the wrong has to be viewed as a sufficient
condition for disgorgement. Just as extra criteria are required before,
eg, punitive damages are awarded for tort, so extra criteria may have
to be satisfied before disgorgement for the wrong will be awarded. But
punitive damages are still clearly being given for the wrong. Even if
one does not like United Australia, surely, eg, Att
Gen v Blake shows that the breach of contract is the cause of
action for which disgorgement (through an account of profits) is given
albeit that it will be rare cases of breach of contract where disgorgement
is awarded.
Andrew Burrows
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