High Court of Australia - on drinking and other disinhibiting substances

Er ... is the High Court approving the use of "disinhibiting" substances other than alcohol? If it is a matter of individual responsibility for alcohol, why is it not a matter of personal responsibility for any other disinhibiting substance?

Almost all societies reveal a propensity to resort to alcohol or some other disinhibiting substance for purposes of relaxation. Now some drinkers are afflicted by the disease of alcoholism, some have other health problems which alcohol caused or exacerbates, and some behave badly after drinking. But it is a matter of personal decision and individual responsibility how each particular drinker deals with these difficulties and dangers. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of drink.(C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 (10 November 2009) at [54] per Gummow, Heydon and Crennan JJ)

Posting from the iPhone

At last, posting from the iPhone?

Theory of efficient breach out the window

Tabcorp Holdings Ltd v Bowen Investments P/L [2009] HCA 8 was an interesting case of a lessee (Tabcorp) altering the foyer of leased premises in breach of a covenant not to alter the premises without the landlord's consent. Tabcorp tried to run the argument that it should only be liable in damages for the difference in monetary value between the former foyer and the renovated foyer rather than the cost of reinstating the foyer to its former condition (a very big difference as the reinstatement costs would include tearing down the new foyer and buying all kinds of rare marble and wood to reinstate the foyer). The High Court has this to say about the lessee's argument:

13. Underlying the Tenant's submission that the appropriate measure of damages was the diminution in value of the reversion was an assumption that anyone who enters into a contract is at complete liberty to break it provided damages adequate to compensate the innocent party are paid. It is an assumption which at least one distinguished mind has shared[12]. It has been dignified as "the doctrine of efficient breach". It led, in the Landlord's submission, to an attempt "arrogantly [to] impose a form of 'economic rationalism'" on the unwilling Landlord. The assumption underlying the Tenant's submission takes no account of the existence of equitable remedies, like decrees of specific performance and injunction, which ensure or encourage the performance of contracts rather than the payment of damages for breach. It is an assumption which underrates the extent to which those remedies are available[13]. However, even if the assumption were correct it would not assist the Tenant. The Tenant's submission misunderstands the common law in relation to damages for breach of contract. The "ruling principle"[14], confirmed in this Court on numerous occasions[15], with respect to damages at common law for breach of contract is that stated by Parke B in Robinson v Harman[16]:
    

"The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed."

Oliver J was correct to say in Radford v De Froberville[17] that the words "the same situation, with respect to damages, as if the contract had been performed" do not mean "as good a financial position as if the contract had been performed" (emphasis added). In some circumstances putting the innocent party into "the same situation ... as if the contract had been performed" will coincide with placing the party into the same financial situation. Thus, in the case of the supply of defective goods, the prima facie measure of damages is the difference in value between the contract goods and the goods supplied. But as Staughton LJ explained in Ruxley Electronics Ltd v Forsyth[18] such a measure of damages seeks only to reflect the financial consequences of a notional transaction whereby the buyer sells the defective goods on the market and purchases the contract goods. The buyer is thus placed in the "same situation ... as if the contract had been performed", with the loss being the difference in market value. However, in cases where the contract is not for the sale of marketable commodities, selling the defective item and purchasing an item corresponding with the contract is not possible. In such cases, diminution in value damages will not restore the innocent party to the "same situation ... as if the contract had been performed".

The High Court then considered and went very close to over-ruling Ruxley Electronics and Construction v Forsythe ([1995] UKHL 8; [1996] AC 344.), a case where the House of Lords gave damages of 2,500 pounds for loss of amenity of the use of a pool that was built slightly too shallow (6 feet rather than 7 feet 6 inches) rather than the amount it would cost to tear down and reconstruct the pool to its correct specifications at a cost of 21,560 pounds. The House of Lords decision being undisturbed because it endorsed the correct statement of principles but went on to hold that the circumstances were clearly exceptional in that the reduced depth of the pool did not make the pool dangerous nor were they satisfied that the respondent intended to actually rebuild the pool if they did get the higher amount of damages.

Also interesting to note that although the trial judge's award was for common law damages, the High Court said one of the considerations was that if the landlord had known that lessee was going to breach, they could have sought and obtained injunctive relief - which is equitable in nature. Surely the monetary award should then be in the nature of equitable compensation in lieu of specific performance, rather than common law damages? Anyone?

Spoor

During my holiday in the Sapphire Coast, I was taught to recognise the spoor of native animals by a man wise in the ways of the natural world.

The white coloured one's the spoor of a predator. A snake I am told. Diamond python.



This one here's Wombat droppings, big and square.



More Wombat, they like to mark their territory by pooping on ledges.