chapter
compensation for loss of earning power in the future…’ (Lord Goddard in British Transport Commission v Gourley [1956] AC 185, p 206). To what extent is general damage compensation for mental injury? 2 ‘[R]ecent cases show the desirability of three things: First, assessability: In cases of grave injury…the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity… Thirdly, predictability…’ (Lord Denning MR in Ward v James [1966] 1 QB 273, pp 299–300). Why have these three principles been ignored for so long in defamation cases? 3 Would it be cheaper, fairer and more efficient if liability for serious personal injury was placed on a no-fault basis? Does it depend upon the source of the personal injury (traffic, industrial and/or medical accidents, for example)? What about accidents in the home? What view do civil law systems take? (Cf Zweigert and Kötz, An Introduction to Comparative Law, 3rd edn, 1998, OUP (trans Weir), pp 646–84.) 4 Let us assume that law is a science and that the law of damages is a scientific rationalisation of a particular phenomenon. What is the phenomenon? Is it the actual injury suffered by a plaintiff, or is it some mathematical figure set by the Court of Appeal? If the latter, does this not mean that law is the object (that is, the phenomenon) of its own science? (f) Fraud
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Lord Denning MR:… Damages for fraud and conspiracy are assessed differently from damages for breach of contract… On principle, the distinction seems to be this: in contract, the defendant has made a promise and broken it. The object of damages is to put the plaintiff in as good a position as far as money can do it, as if the promise had been performed. In fraud, the defendant has been guilty of a deliberate wrong by inducing the plaintiff to act to his detriment. The object of damages is to compensate the plaintiff for all the loss he has suffered, so far again, as money can do it…

Archer v Brown [1985] QB 401 Queen’s Bench Division

(See p 60.)

Smith New Court Securities Ltd v Scrimgeour Vickers Ltd [1997] AC 254 House of Lords

This was an action for damages in the tort of deceit against a defendant who had induced, by fraudulent misrepresentation, the plaintiffs to buy shares at a price which, soon after the purchase, dropped considerably. The trial judge awarded damages of over £10 million, but this was reduced to just over £1 million by the Court of Appeal. The House of Lords reinstated the trial judge’s award.