Robert Stevens

in Torts and Rights

Published in print September 2007 | ISBN: 9780199211609
Published online January 2009 | e-ISBN: 9780191705946 | DOI:

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Where specific relief is sought, such as an injunction, this is not accurately described as a remedy for a tort, as the court is enforcing the primary right. Similarly, self help ‘remedies’ are not concerned with secondary obligations, but rather with privileges created by the conflict of rights. Drawing on many different examples from conversion, libel, negligence, and false imprisonment, this chapter demonstrates the importance of the distinction between damages in substitute for the right itself, and those awarded to compensate for losses consequent upon the right infringement. Gain-based damages awarded as restitution for wrongs are shown to have either no or very little place within the common law. The best interpretation of punitive damages in order to overcome the common objections to such awards is that they are similarly not awarded to make good any loss, nor in order to deter wrongdoing but are rather a vindication of the claimant's right where the violation is particularly egregious.

Keywords: injunctions; self help; damages; conversion; false imprisonment; libel; restitution; mitigation; punitive damages; deterrence

Chapter.  19450 words. 

Subjects: Civil Law

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