ABSTRACT
Interestingly, the position may well be different in the law of tort. If a person deliberately commits a tort with an intention of profiting the claimant may well be able indirectly to claim the profit through an award of exemplary damages (Chapter 4 § 5(b)). In addition, there are certain torts where the award of damages is more restitutionary than compensatory. Thus, in Strand Electric v Brisford Entertainments,158 the owners of theatrical equipment sued in the tort of detinue the hirers of the equipment who had failed to return the goods after the end of the hire period. The Court of Appeal held that the owners were entitled by way of damages to a reasonable rate of hire during the period the equipment was detained. Denning LJ noted that the case concerned an owner who had in fact suffered no loss, but in such a situation it was not for the wrongdoer, who had made use of the goods for his own purposes, to claim this point. The wrongdoer had in fact used the goods and thus be must pay the reasonable hire rate for them. The case ‘resembles’, said Denning LJ, ‘an action for restitution rather than an action for tort’.159
