Damages

At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury.[1] To warrant the award, the claimant must usually show that a breach of duty has caused foreseeable loss. To be recognised at law, the loss must involve damage to property, or mental or physical injury; pure economic loss is rarely recognised for the award of damages.[2]

Compensatory damages are further categorized into special damages, which are economic losses such as loss of earnings, property damage and medical expenses, and general damages, which are non-economic damages such as pain and suffering and emotional distress.[3] Rather than being compensatory ,[4] at common law damages may instead be nominal, contemptuous or exemplary.[5]

History

Among the Saxons, a price called Weregild was placed on every human being and every piece of property in the Salic Code. If property was stolen, or someone was injured or killed, the guilty person would have to pay weregild as restitution to the victim's family, or to the owner of the property.

Proof of damages

Proximate cause

Recovery of damages by a plaintiff in lawsuit is subject to the legal principle that damages must be proximately caused by the wrongful conduct of the defendant. This is known as the principle of proximate cause. This principle governs the recovery of all compensatory damages, whether the underlying claim is based on contract, tort, or both.[6] Damages are likely to be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably have foreseen that someone might be hurt by their actions, there may be no liability.

This rule does not usually apply to intentional torts (for example, tort of deceit), and also has stunted applicability to the quantum in negligence where the maxim Intended consequences are never too remote applies – 'never' is inaccurate here but resorts to unforeseeable direct and natural consequences of an act.

Expert testimony

It may be useful for the lawyers, the plaintiff and/or the defendant to employ forensic accountants or someone trained in the relevant field of economics to give evidence on the value of the loss.[3] In this case, they may be called upon to give opinion evidence as an expert witness.

Compensatory damages

Compensatory damages are paid to compensate the claimant for loss, injury, or harm suffered as a result of (see requirement of causation) another's breach of duty. (e.g., in a negligence claim under tort law). Expectation damages are used in contract law.[7]

Quantum (measure) of damages

Liability for payment of an award of damages is established when the claimant proves, on the balance of probabilities, that a defendant's wrongful act caused a tangible, harm, loss or injury to the plaintiff. Once that threshold is met, the plaintiff is entitled to some amount of recovery for that loss or injury. No recovery is not an option. The court must then assess the amount of compensation attributable to the harmful acts of the defendant.[8]

Special damages

Special damages compensate the claimant for the quantifiable monetary losses suffered by the plaintiff. For example, extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs, and so on.[9] They are seen in both personal and commercial actions.

Special damages can include direct losses (such as amounts the claimant had to spend to try to mitigate damages)[10] and consequential or economic losses resulting from lost profits in a business. Special damages basically include compensatory damages for the injury or harm to the plaintiff that result from the tort committed by the defendant.

Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place.[11] Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. This can often result in a different measure of damages. In cases where it is possible to frame a claim in either contract or tort, it is necessary to be aware of what gives the best outcome.

If the transaction was a "good bargain," contract generally gives a better result for the claimant.

As an example, Neal agrees to sell Mary an antique Rolex for £100. In fact the watch is a fake and worth only £50. If it had been a genuine antique Rolex, it would have been worth £500. Neal is in breach of contract and could be sued. In contract, Mary is entitled to an item worth £500, but she has only one worth £50. Her damages are £450. Neal also induced Mary to enter into the contract through a misrepresentation (a tort). If Mary sues in tort, she is entitled to damages that put herself back to the same financial position place she would have been in had the misrepresentation not been made. She would clearly not have entered into the contract knowing the watch was fake, and is entitled to her £100 back. Thus her damages in tort are £100. (However, she would have to return the watch, or else her damages would be £50.)

If the transaction were a "bad bargain", tort gives a better result for the claimant. If in the above example Mary had overpaid, paying £750 for the watch, her damages in contract would still be £450 (giving her the item she contracted to buy), however in tort damages are £700. This is because damages in tort put her in the position she would have been in had the tort not taken place, and are calculated as her money back (£750) less the value of what she actually got (£50).

Incidental and consequential losses

Special damages are sometimes divided into incidental damages, and consequential damages.

Incidental losses include the costs needed to remedy problems and put things right. The largest element is likely to be the reinstatement of property damage. Take for example a factory which was burnt down by the negligence of a contractor. The claimant would be entitled to the direct costs required to rebuild the factory and replace the damaged machinery.

The claimant may also be entitled to any consequential losses. These may include the lost profits that the claimant could have been expected to make in the period whilst the factory was closed and rebuilt.

Breach of contract duty - (ex contract)

On a breach of contract by a defendant, a court generally awards the sum that would restore the injured party to the economic position they expected from performance of the promise or promises (known as an "expectation measure" or "benefit-of-the-bargain" measure of damages). This rule, however, has attracted increasing scrutiny from Australian courts and legal commentators.[12][13][14]

When it is either not possible or not desirable to award the victim in that way, a court may award money damages designed to restore the injured party to the economic position s/he occupied at the time the contract was entered (known as the "reliance measure")[15][16] or designed to prevent the breaching party from being unjustly enriched ("restitution") (see below).

Parties may contract for liquidated damages to be paid upon a breach of the contract by one of the parties. Under common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach (in this case it is termed penal damages).[17] The clause will be enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of economic loss. Courts have ruled as excessive and invalidated damages which the parties contracted as liquidated, but which the court nonetheless found to be penal. To determine whether a clause is a liquidated damages clause or a penalty clause, it is necessary to consider:

i) Whether the clause is 'extravagant, out of all proportion, exorbitant or unconscionable'[18]

ii) Whether there is a single sum stipulated for a number of different breaches, or individual sums for each breach[19]

iii) Whether a genuine pre-estimate of damage is ascertainable[19]

Breach of tort duty - (ex delicto)

Damages in tort are generally awarded to place the claimant in the position that would have been taken had the tort not taken place. Damages in tort are quantified under two headings: general damages and special damages.

In personal injury claims, damages for compensation are quantified by reference to the severity of the injuries sustained (see below general damages for more details). In non-personal injury claims, for instance, a claim for professional negligence against solicitors, the measure of damages will be assessed by the loss suffered by the client due to the negligent act or omission by the solicitor giving rise to the loss. The loss must be reasonably foreseeable and not too remote. Financial losses are usually simple to quantify but in complex cases which involve loss of pension entitlements and future loss projections, the instructing solicitor will usually employ a specialist expert actuary or accountant to assist with the quantification of the loss.

General damages

General damages compensate the claimant for the non-monetary aspects of the specific harm suffered. This is usually termed 'pain, suffering and loss of amenity'. Examples of this include physical or emotional pain and suffering, loss of companionship, loss of consortium, disfigurement, loss of reputation, loss or impairment of mental or physical capacity, hedonic damages or loss of enjoyment of life, etc.[20] This is not easily quantifiable, and depends on the individual circumstances of the claimant. Judges in the United Kingdom base the award on damages awarded in similar previous cases.

General damages are generally awarded only in claims brought by individuals, when they have suffered personal harm. Examples would be personal injury (following the tort of negligence by the defendant), or the tort of defamation.

Speculative damages

Speculative damages are damages that have not yet occurred, but the plaintiff expects them to. Typically, these damages cannot be recovered unless the plaintiff can prove that they are reasonably likely to occur.[21]

Statutory damages

Statutory damages are an amount stipulated within the statute rather than calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine the value of the harm to the victim. Mere violation of the law can entitle the victim to a statutory award, even if no actual injury occurred. These are different from nominal damages, in which no written sum is specified.

Nominal damages

Nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2.

Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech.

Contemptuous damages

Contemptuous damages are a form of damage award available in some jurisdictions. They are similar to nominal damages awards, as they are given when the plaintiff's suit is trivial, used only to settle a point of honour or law.[22] Awards are usually of the smallest amount, usually 1 cent or similar. The key distinction is that in jurisdictions that follow the loser-pays for attorney fees, the claimant in a contemptuous damages case may be required to pay his or her own attorney fees.[23]

Traditionally, the court awarded the smallest coin in the Realm, which in England was one farthing, 1/960 of a pound before decimalisation in the 1970s. Court costs are not awarded.[24]

Punitive damages (non-compensatory)

Generally, punitive damages, which are also termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously insidious and are over and above the amount of compensatory damages, such as in the event of malice or intent. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

In England and Wales, exemplary damages are limited to the circumstances set out by Lord Devlin in the leading case of Rookes v. Barnard. They are:

  1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
  2. Where the defendant's conduct was 'calculated' to make a profit for himself.
  3. Where a statute expressly authorises the same.

Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.

Punitive damages awarded in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public.[25]

Aggravated damages

Some jurisdictions recognize a form of damages, called, aggravated damages, that are similar to punitive or exemplary damages. Aggravated damages are not often awarded; they apply where the injury has been aggravated by the wrongdoer's behaviour, for example, their cruelty.[26]

Restitutionary or disgorgement damages

In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. Doyle and Wright define restitutionary damages as being a monetary remedy that is measured according to the defendant's gain rather than the plaintiff's loss.[27] The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.

In England and Wales the House of Lords case of Attorney-General v. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake, for the publication of his book, were awarded to the British Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.

The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.

Legal costs

In addition to damages, the successful party is entitled to be awarded their reasonable legal costs that they spent during the case. This is the rule in most countries other than the United States. In the United States, a party generally is not entitled to its attorneys' fees or for hardships undergone during trial unless the parties agreed in a contract that attorney's fees should be covered or a specific statute or law permits recovery of legal fees, such as discrimination.[28]

Damages in personal injury cases

The quantification of personal injury is not an exact science. In English law solicitors like to call personal injury claims as "general damages" for pain and suffering and loss of amenity (PSLA). Solicitors quantify personal injury claims by reference to previous awards made by the courts which are "similar" to the case in hand. The guidance solicitors will take into account to help quantify general damages are as hereunder:

The age of the client

The age of the client is important especially when dealing with fatal accident claims or permanent injuries. The younger the injured victim with a permanent injury the longer that person has to live with the PSLA. As a consequence, the greater the compensation payment. In fatal accident claims, generally the younger deceased, the greater the dependency claim by the partner and children.

The nature and extent of the injuries sustained

Solicitors will consider "like for like" injuries with the case in hand and similar cases decided by the courts previously. These cases are known as precedents. Generally speaking decisions from the higher courts will bind the lower courts. Therefore, judgments from the House of Lords and the Court of Appeal have greater authority than the lower courts such as the High Court and the County Court. A compensation award can only be right or wrong with reference to that specific judgment. Solicitors must be careful when looking at older cases when quantifying a claim to ensure that the award is brought up to date and to take into account the court of appeal case in Heil v Rankin[29] Generally speaking the greater the injury the greater the damages awarded.

Personal attributes and fortitude of the client

This heading is inextricably linked with the other points above. Where two clients are of the same age, experience and suffer the same injury, it does not necessarily mean that they will be affected the same. We are all different. Some people will recover more quickly than others. The courts will assess each claim on its own particular facts and therefore if one claimant recovers more quickly than another, the damages will be reflected accordingly. It is important to note here that "psychological injuries" may also follow from an accident which may increase the quantum of damages.

When a personal injury claim is settled either in court or out of court, the most common way the compensation payment is made is by a lump sum award in full and final settlement of the claim. Once accepted there can be no further award for compensation at a later time unless the claim is settled by provisional damages often found in industrial injury claims such as asbestos related injuries.

See also

Notes

  1. ^ International principle: Trans-Lex.org, Garner, p.416
  2. ^ See, e.g., Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27; Electrochrome v Welsh Plastics [1968] 2 All ER 205,, and British Celanese v Hunt [1969] 1 WLR 959
  3. ^ a b Larson, Aaron (25 July 2016). "How Are Damages Calculated After an Injury or Lawsuit". ExpertLaw. Retrieved 19 September 2017.
  4. ^ "Actual Damages". Wex. Cornell Law School. Retrieved 19 September 2017.
  5. ^ "Punitive Damages". Wex. Cornell Law School. Retrieved 19 September 2017.
  6. ^ Brinig, Brian P., JD, CPA (2011). Finance & Accounting for Lawyers. Portland, OR: BV Resources, LLC. p. 200. ISBN 978-1-935081-71-5.
  7. ^ Robinson v Harman (1848) 1 Ex Rep 850
  8. ^ See, e.g., the U.S. Supreme Court cases of "The Conquerer, 166 US 110, 17 S. Ct. 510, 41 L. Ed. 937 (1897)". Google Scholar. Google. Retrieved 19 September 2017. and "Palmer v. Connecticut Railway & Lighting Co., 311 US 544, 61 S. Ct. 379, 85 L. Ed. 336 (1941)". Google Scholar. Google. Retrieved 19 September 2017.
  9. ^ Morris, Clarence (March 1959). "Liability for Pain and Suffering". Columbia Law Review. 59 (3). JSTOR 1120125.
  10. ^ "Duty to Mitigate". Wex. Cornell Law School. Retrieved 19 September 2017.
  11. ^ Goldberg, John C.P. (2005). "Two Conceptions of Tort Damages: Fair v. Full Compensation". DePaul Law Review. 55: 435. Retrieved 19 September 2017.
  12. ^ Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8, High Court (Australia).
  13. ^ Clark v Macourt [2013] HCA 93, High Court (Australia).
  14. ^ Winterton, David. "Clark v Macourt: Defective Sperm and Performance Substitutes in the High Court of Australia". (2014) 38(2) Melbourne University Law Review 755.
  15. ^ McRae v Commonwealth Disposals Commission [1951] HCA 79, (1951) 84 CLR 377, High Court (Australia).
  16. ^ Commonwealth v Amann Aviation [1991] HCA 54, (1991) 174 CLR 64, High Court (Australia).
  17. ^ Amev-Udc Finance Ltd v Austin [1986] HCA 63, (1986) 162 CLR 170 (4 November 1986), High Court (Australia).
  18. ^ Australian Competition & Consumer Commission v Esanda Finance Corporation Ltd [2003] FCA 1225 (7 November 2003), Federal Court (Australia).
  19. ^ a b Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] UKHL 1, [1915] AC 847 (26 April 1915).
  20. ^ Beaman, Richard (2010-09-22). "Loss of Amenity". Douglas Wemyss Solicitors. Leicester. Archived from the original on 2010-11-15.
  21. ^ "Speculative Damages". Wex. Cornell Law School. Retrieved 19 September 2017.
  22. ^ "Contemptuous damages". Oxford Reference. Oxford University Press. Retrieved 19 September 2017.
  23. ^ Oliphant, Ken; Lunney, Mark (2008). Tort Law: Text and Materials. Oxford, England: Oxford University Press. p. 865. ISBN 0199211361.
  24. ^ Spetz, Steven E (1974). "Civil Court Procedure And Remedies For Tort". Can I Sue? An Introduction to Canadian Tort Law. Toronto: Pitman. p. 219. ISBN 0-273-04189-4.
  25. ^ Koziol, Helmut; Wilcox, Vanessa (2011). 3709109647. Springer Vienna. ISBN 3709109647. Retrieved 19 September 2017.
  26. ^ Behand, Nadine (2009). How To Run Your Own Court Case. Sydney: Redfern Legal Centre. p. 145. ISBN 978-1-921410-83-3.
  27. ^ Doyle, S; Wright, D. "Restitutionary damages - the unnecessary remedy". (2001) 25(1) Melbourne University Law Review 1.
  28. ^ "Remedies for Employment Discrimination". Retrieved July 4, 2010.
  29. ^ Heil v Rankin & Another [2000] EWCA Civ 84, Court of Appeal

Further reading

  • Black, Stephen (2011). "A Capital Gains Anomaly: Commissioner v. Banks and the Proceeds from Lawsuits". St. Mary's Law Journal. 43: 113. SSRN 1858776.

External links

Breach of contract

Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. Breach occurs when a party to a contract fails to fulfill its obligation(s) as described in the contract, or communicates an intent to fail the obligation or otherwise appears not to be able to perform its obligation under the contract. Where there is breach of contract, the resulting damages will have to paid by the party breaching the contract to the aggrieved party.

Civil law (common law)

Civil law is a branch of the law. In common law legal systems such as England and Wales, the law of Pakistan and the law of the United States, the term refers to non-criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law, as is law of property (other than property-related crimes, such as theft or vandalism). Civil law may, like criminal law, be divided into substantive law and procedural law. The rights and duties of persons (natural persons and legal persons) amongst themselves is the primary concern of civil law. It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. However, exemplary damages or punitive damages may be awarded in civil proceedings. It was also formerly possible for common informers to sue for a penalty in civil proceedings.Because some courts have both civil and criminal jurisdiction, civil proceedings cannot be defined as those taken in civil courts. In the United States, the expression "civil courts" is used as a shorthand for "trial courts in civil cases".In England, the burden of proof in civil proceedings is, in general—with a number of exceptions such as committal proceedings for civil contempt—proof on a balance of probabilities. In civil cases in the law of the Maldives, the burden of proof requires the plaintiff to convince the court of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action in order to recover.

Contract

A contract is a legally-binding agreement which recognises and governs the rights and duties of the parties to the agreement. A contract is legally enforceable because it meets the requirements and approval of the law. An agreement typically involves the exchange of goods, services, money, or promises of any of those. In the event of breach of contract, the law awards the injured party access to legal remedies such as damages and cancellation.In the Anglo-American common law, formation of a contract generally requires an offer, acceptance, consideration, and a mutual intent to be bound. Each party must have capacity to enter the contract. Although most oral contracts are binding, some types of contracts may require formalities such as being in writing or by deed.

In the civil law tradition, contract law is a branch of the law of obligations.

Copyright law of the United States

The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any music composed before January 1, 1923, is generally considered public domain.

United States copyright law was last generally revised by the Copyright Act of 1976, codified in Title 17 of the United States Code. The United States Constitution explicitly grants Congress the power to create copyright law under Article 1, Section 8, Clause 8, known as the Copyright Clause. Under the Copyright Clause, Congress has the power, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."The United States Copyright Office handles copyright registration, recording of copyright transfers, and other administrative aspects of copyright law.

Damages (TV series)

Damages is an American legal thriller television series created by writing and production trio Daniel Zelman, Glenn Kessler, and Todd A. Kessler. It premiered on July 24, 2007 on FX and aired for three seasons before moving to the DirecTV channel Audience Network in 2010, airing for two further seasons and concluding in 2012.The plot revolves around the brilliant, ruthless lawyer Patty Hewes (Glenn Close) and her newest protégée, recent law school graduate Ellen Parsons (Rose Byrne). Each season features a major case that Hewes and her firm take on while also examining a chapter of the complex relationship between Ellen and Patty. The first two seasons center on the law firm Hewes & Associates in New York City, while later seasons center more on Patty and Ellen's relationship as Ellen attempts to distance herself from Hewes & Associates professionally and personally.

The series is known for its depiction of season-long cases from the point of view of both a law firm and an opponent. It is also noted for the technical merit of its writing, including its effective use of plot twists and non-linear narrative. It has received critical acclaim and various award nominations, with Close and Željko Ivanek winning Primetime Emmy Awards for their performances. Other established actors in the cast include Ted Danson, William Hurt, Marcia Gay Harden, Timothy Olyphant, Martin Short, Lily Tomlin, John Goodman, Ryan Phillippe, Dylan Baker, Janet McTeer, and John Hannah.

Exxon Valdez oil spill

The Exxon Valdez oil spill occurred in Prince William Sound, Alaska, March 24, 1989, when Exxon Valdez, an oil tanker owned by Exxon Shipping Company, bound for Long Beach, California, struck Prince William Sound's Bligh Reef, 1.5 miles west of Tatitlek, Alaska at 12:04 am local time and spilled 10.8 million US gallons (260,000 bbl)(or a mass of 35,000 metric tonnes) of crude oil over the next few days. It is considered to be one of the most devastating human-caused environmental disasters. The Valdez spill is the second largest in US waters, after the 2010 Deepwater Horizon oil spill, in terms of volume released. Prince William Sound's remote location, accessible only by helicopter, plane, or boat, made government and industry response efforts difficult and severely taxed existing response plans. The region is a habitat for salmon, sea otters, seals and seabirds. The oil, originally extracted at the Prudhoe Bay oil field, eventually covered 1,300 miles (2,100 km) of coastline, and 11,000 square miles (28,000 km2) of ocean.According to official reports, the ship was carrying 53,094,510 gallons (1,264,155 barrels) of oil, of which about 10.8 million US gallons (260,000 bbl; 41,000 m3) were spilled into the Prince William Sound. An approximate figure of 11 million US gallons (260,000 bbl; 42,000 m3) was a commonly accepted estimate of the spill's volume and has been used by the State of Alaska's Exxon Valdez Oil Spill Trustee Council, the National Oceanic and Atmospheric Administration and environmental groups such as Greenpeace and the Sierra Club.

Multiple factors have been identified as contributing to the incident:

Exxon Shipping Company failed to supervise the master and provide a rested and sufficient crew for Exxon Valdez. The NTSB found this was widespread throughout the industry, prompting a safety recommendation to Exxon and to the industry.

The third mate failed to properly maneuver the vessel, possibly due to fatigue or excessive workload.

Exxon Shipping Company failed to properly maintain the Raytheon Collision Avoidance System (RAYCAS) radar, which, if functional, would have indicated to the third mate an impending collision with the Bligh Reef by detecting the "radar reflector", placed on the next rock inland from Bligh Reef for the purpose of keeping ships on course. This cause has only been identified by Greg Palast (without evidentiary support) and is not present in the official accident report.Captain Joseph Hazelwood, who was widely reported to have been drinking heavily that night, was not at the controls when the ship struck the reef. However, as the senior officer, he was in command of the ship even though he was asleep in his bunk. In light of the other findings, investigative reporter Greg Palast stated in 2008, "Forget the drunken skipper fable. As to Captain Joe Hazelwood, he was below decks, sleeping off his bender. At the helm, the third mate never would have collided with Bligh Reef had he looked at his RAYCAS radar. But the radar was not turned on. In fact, the tanker's radar was left broken and disabled for more than a year before the disaster, and Exxon management knew it. It was just too expensive to fix and operate." Exxon blamed Captain Hazelwood for the grounding of the tanker.Other factors, according to an MIT course entitled "Software System Safety" by Professor Nancy G. Leveson, included:

Ships were not informed that the previous practice of the Coast Guard tracking ships out to Bligh Reef had ceased.

The oil industry promised, but never installed, state-of-the-art iceberg monitoring equipment.

Exxon Valdez was sailing outside the normal sea lane to avoid small icebergs thought to be in the area.

The 1989 tanker crew was half the size of the 1977 crew, worked 12- to 14-hour shifts, plus overtime. The crew was rushing to leave Valdez with a load of oil.

Coast Guard vessel inspections in Valdez were not performed, and the number of staff was reduced.

Lack of available equipment and personnel hampered the spill cleanup.This disaster resulted in International Maritime Organization introducing comprehensive marine pollution prevention rules (MARPOL) through various conventions. The rules were ratified by member countries and, under International Ship Management rules, the ships are being operated with a common objective of "safer ships and cleaner oceans".In 2009, Exxon Valdez Captain Joseph Hazelwood offered a "heartfelt apology" to the people of Alaska, suggesting he had been wrongly blamed for the disaster: "The true story is out there for anybody who wants to look at the facts, but that's not the sexy story and that's not the easy story," he said. Hazelwood said he felt Alaskans always gave him a fair shake.

Glenn Close

Glenn Close (born March 19, 1947) is an American actress, singer and producer. She is the recipient of numerous accolades, including three Tony Awards, three Golden Globe Awards, three Primetime Emmy Awards. A seven-time Academy Award nominee, she has more nominations without a win than any other living actor, and holds the record for being the actress with the most nominations without winning. In 2016, Close was inducted into the American Theater Hall of Fame.

Born to the surgeon William Close in Greenwich, Connecticut, Close majored in theater and anthropology at the College of William & Mary. She began her professional career on stage in 1974 with Love for Love and was mostly a New York stage actress until the early 1980s. Her work included Broadway productions of Barnum in 1980 and The Real Thing in 1983, for which she won the Tony Award for Best Actress in a Play. Her film debut came in The World According to Garp (1982), which was followed by supporting roles in the films The Big Chill (1983) and The Natural (1984); all three earned her nominations for the Academy Award for Best Supporting Actress. Close went on to establish herself with lead roles in Fatal Attraction (1987) and Dangerous Liaisons (1988), both of which earned her nominations for the Academy Award for Best Actress.

Close won two more Tony Awards for Death and the Maiden in 1992 and Sunset Boulevard in 1995. She won her first Primetime Emmy Award for the 1995 television drama film Serving in Silence: The Margarethe Cammermeyer Story, and she continued a successful career in Hollywood with starring roles in Reversal of Fortune (1990), 101 Dalmatians (1996), and Air Force One (1997), among others. Further television work came for Close in the 2000s, with her portrayal of Eleanor of Aquitaine in the 2003 television film The Lion in Winter earning her a Golden Globe Award. From 2007 to 2012, Close starred as Patty Hewes in the drama series Damages, which won her a Golden Globe Award and two more Primetime Emmy Awards. She returned to the Broadway stage in a 2014 revival of A Delicate Balance. During this period, she received two Academy Award nominations for Albert Nobbs (2011) and The Wife (2017), and also won a third Golden Globe for the latter.

Close has been married three times, and she has a daughter from her relationship with producer John Starke. She is the president of Trillium Productions and has co-founded the website FetchDog. She has made political donations in support of Democratic politicians, and is vocal on issues such as gay marriage, women's rights, and mental health.

Legal remedy

A legal remedy, also judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will.

In common law jurisdictions and mixed civil-common law jurisdictions, the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy available in these systems is declaratory relief, where a court determines the rights of the parties to an action without awarding damages or ordering equitable relief.

In English and American jurisprudence, there is a legal maxim (albeit one sometimes honored in the breach) that for every right, there is a remedy; where there is no remedy, there is no right. That is, lawmakers claim to provide appropriate remedies to protect rights. This legal maxim was first enunciated by William Blackstone: "It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress."

Liebeck v. McDonald's Restaurants

Liebeck v. McDonald's Restaurants, also known as the McDonald's coffee case and the hot coffee lawsuit, was a 1994 product liability lawsuit that became a flashpoint in the debate in the United States over tort reform. Although a New Mexico civil jury awarded $2.86 million to plaintiff Stella Liebeck, a 79-year-old woman who suffered third-degree burns in her pelvic region when she accidentally spilled hot coffee in her lap after purchasing it from a McDonald's restaurant, ultimately Liebeck was only awarded $640,000. Liebeck was hospitalized for eight days while she underwent skin grafting, followed by two years of medical treatment.

Liebeck's attorneys argued that, at 180–190 °F (82–88 °C), McDonald's coffee was defective, claiming it was too hot and more likely to cause serious injury than coffee served at any other establishment. McDonald's had refused several prior opportunities to settle for less than what the jury ultimately awarded. The jury damages included $160,000 to cover medical expenses and compensatory damages and $2.7 million in punitive damages. The trial judge reduced the final verdict to $640,000, and the parties settled for a confidential amount before an appeal was decided.

The case was said by some to be an example of frivolous litigation; ABC News called the case "the poster child of excessive lawsuits", while the legal scholar Jonathan Turley argued that the claim was "a meaningful and worthy lawsuit". In June 2011, HBO premiered Hot Coffee, a documentary that discussed in depth how the Liebeck case has centered in debates on tort reform.

Liquidated damages

Liquidated damages (also referred to as liquidated and ascertained damages) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach (e.g., late performance).When damages are not predetermined/assessed in advance, then the amount recoverable is said to be 'at large' (to be agreed or determined by a court or tribunal in the event of breach).

Misrepresentation

A concept of English law, a misrepresentation is an untrue or misleading statement of fact made during negotiations by one party to another, the statement then inducing that other party into the contract. The misled party may normally rescind the contract, and sometimes may be awarded damages as well (or instead of rescission).

The law of misrepresentation is an amalgam of contract and tort; and its sources are common law, equity and statute. The common law was amended by the Misrepresentation Act 1967. The general principle of misrepresentation has been adopted by the USA and various Commonwealth countries.

Negligence

Negligence (Lat. negligentia) is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.

Personal injury

Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property.In Anglo-American jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit, or "plaintiff," has suffered harm to his or her body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of strict liability. Different jurisdictions describe the damages (or, the things for which the injured person may be compensated) in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.

Punitive damages

Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will receive all or some of the punitive damages award.

Punitive damages are often awarded if compensatory damages are deemed an inadequate remedy. The court may impose them to prevent undercompensation of plaintiffs and to allow redress for undetectable torts and taking some strain away from the criminal justice system. Punitive damages are most important for violations of the law that are hard to detect.However, punitive damages awarded under court systems that recognize them may be difficult to enforce in jurisdictions that do not recognize them. For example, punitive damages awarded to one party in a US case would be difficult to get recognition for in a European court in which punitive damages are most likely to be considered to violate ordre public.Because they are usually paid in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases, usually under tort law, if the defendant's conduct was egregiously insidious. Punitive damages cannot generally be awarded in contract disputes. The main exception is in insurance bad faith cases in the US if the insurer's breach of contract is alleged to be so egregious as to amount to a breach of the "implied covenant of good faith and fair dealing", and is therefore considered to be a tort cause of action eligible for punitive damages (in excess of the value of the insurance policy).

Restitution

The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. When a court orders restitution it orders the defendant to give up his/her gains to the claimant. When a court orders compensation it orders the defendant to pay the claimant for his or her loss.

American Jurisprudence 2d edition notes:

The word "restitution" was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner and returning to the status quo but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. In summary, therefore, the word "restitution" means the relinquishment of a benefit or the return of money or other property obtained through an improper means to the person from whom the property was taken.

Restitution may be either a legal remedy or an equitable remedy, "depend[ing] upon the basis for the plaintiff's claim and the nature of the underlying remedies sought". Generally, restitution is an equitable remedy when the money or property wrongfully in the possession of defendant is traceable (i.e., can be tied to "particular funds or property"). In such a case, restitution comes in the form of a constructive trust or equitable lien.Where the particular property at issue cannot be particularly identified, restitution is a legal remedy. This occurs, for example, when the plaintiff "seeks a judgment imposing personal liability to pay a sum of money". Unjust enrichment and quantum meruit are sometimes identified as types of a disgorgement legal remedies.This type of damages restores the benefit conferred to the non-breaching party. Put simply, the plaintiff will get the value of whatever was conferred to the defendant when there was a contract. There are two general limits to recovery, which is that a complete breach of contract is needed, and the damages will be capped at the contract price if the restitution damages exceed it.

The orthodox view suggests that there is only one principle on which the law of restitution is dependent, namely the principle of unjust enrichment. However, the view that restitution, like other legal responses, can be triggered by any one of a variety of causative events is increasingly prevalent. These are events in the real world which trigger a legal response. It is beyond doubt that unjust enrichment and wrongs can trigger an obligation to make restitution. Certain commentators propose that there is a third basis for restitution, namely the vindication of property rights with which the defendant has interfered. It is arguable that other types of causative event can also trigger an obligation to make restitution.

Specific performance

Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such to complete performance of the contract. It is typically available in the sale of land, but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court.

Specific performance is commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction, but there are mandatory injunctions that have a similar effect to specific performance.

At common law, a claimant's rights were limited to an award of damages. Later, the court of equity developed the remedy of specific performance instead, should damages prove inadequate. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute.As with all equitable remedies, orders of specific performance are discretionary, so their availability depends on its appropriateness in the circumstances. Such order are granted when damages are not an adequate remedy and in some specific cases such as land (which is regarded as unique).

Tate Donovan

Tate Buckley Donovan (born September 25, 1963) is an American actor and director, known for portraying Tom Shayes in Damages, Jimmy Cooper in The O.C., and the voice of the title character in the 1997 Disney animated film Hercules, the animated television series of the same name and in a few Kingdom Hearts video games.

He also had supporting roles in films, such as Good Night, and Good Luck and Argo. Donovan also played Brian Sanders in Hostages and White House Chief of Staff Mark Boudreau in 24: Live Another Day. He has been a guest star in a number of television series.

He has also worked as a producer of 30 for 30 Shorts, for which he won a Primetime Emmy Award for Outstanding Short Form Nonfiction or Reality Series.

Tort

A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.

Tort law, where the purpose of any action is to obtain a private civil remedy such as damages, may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. Tort law may also be contrasted with contract law which also provides a civil remedy after breach of duty; but whereas the contractual obligation is one chosen by the parties, the obligation in both tort and crime is imposed by the state. In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.

Tort reform

Tort reform refers to proposed changes in the civil justice system that aim to reduce the ability of victims to bring tort litigation or to reduce damages they can receive.

Tort actions are civil common law claims first created in the English commonwealth system as a non-legislative means for compensating wrongs and harm done by one party to another person, property or other protected interests (e.g. physical injury or reputation, under libel and slander laws). Tort reform advocates focus on personal injury common law rules in particular.

In the United States, tort reform is a contentious political issue. US tort reform advocates propose, among other things, procedural limits on the ability to file claims, and capping the awards of damages. Supporters of the existing tort system, including consumer advocates, argue that reformers have misstated the existence of any real factual issue and criticize tort reform as disguised corporate welfare.In Commonwealth countries as well as U.S. states including Texas, Georgia, and California, the losing party must pay court costs of the opposing party.Some legal scholars propose to replace tort compensation with a social security framework that serves victims without respect to cause or fault. In 1972, New Zealand introduced the first universal no-fault insurance scheme for all accident victims, which provides benefit from the government-run Accident Compensation Corporation without respect to negligence. Its goal is to achieve equality of compensation, while reducing costs of litigation. In the 1970s, Australia and the United Kingdom drew up proposals for similar no-fault schemes but they were later abandoned.

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