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Danny Friedmann and John McCamus must speak for themselves, of course, but I had understood the basic Friedmann argument to be that the law does/should protect some types of interest directly (rather than 'parasitically') by making restitutionary awards against defendants who infringe those interests, not by allowing a claim in UE, and not by spring-boarding off proof of a wrong sounding in compensatory damages either. Instead, the argument goes that the law should/does protect some interests by allowing some wrong-based restitutionary claims, without putting the claimant to proof of the fact that he could have sued for compensation instead if the wrong in question had caused him a loss. I hope Danny will forgive me for misrepresenting him if I don't have this right. If I do, then I would only comment that the argument presupposes that proof of loss is not a necessary part of our idea of 'wrong'.

CM

Date: Mon, 8 May 2006 09:36:34 +0100
From: Andrew Burrows
Subject: [RDG] 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.