Date: Thu, 3 Apr 2008 14:45

From: John Swan

Subject: Lumley v Gye and greater damages

Jason,

In my article on punitive damages, “Punitive Damages for Breach of Contract: A Remedy in Search of a Justification”, (2003), 29 Queen’s Law Journal 596, I said,

In other cases where damages are very hard to estimate, courts have justified an award of punitive damages as an attempt to give the plaintiff more.

I supported this statement with footnote 52 which said:

See, e.g., H.L. Weiss Forwarding Ltd. v. Omnus, [1976] 1 S.C.R. 776, 63 D.L.R. (3d) 654, a case where the defendants deliberately breached a non-competition clause. Other classes of cases where punitive damages have been justified on this basis include cases where the defendant has wrongfully induced a breach of contract. See, e.g., Vale v. Int. Longshoremen's & Warehousemen's Union, Loc. 508 (1979), 12 B.C.L.R. 249, (B.C.C.A.) which illustrates the factors that may be considered. Seaton J.A. said (at 257-58):

Damages for the tort of inducing breach of contract are said to be "at large". This means that their assessment is "a matter of impression and not addition": see Cassell & Co. Ltd. v. Broome, [1972] A.C. 1027 at 1072, per Lord Hailsham of St. Marylebone L.C. In this respect they are similar to damages for libel. The plaintiff is to be compensated for the invasion of a right and need not be put to strict proof of specific damage: see Exchange Telegraph v. Gregory & Co., [1896] 1 Q.B. 147 at 153 (C.A.). The court must assess a global figure approximating the harm it thinks he has suffered. It may take into account a number of factors, including of course any pecuniary loss that has been suffered. As Lord Hailsham has put it in Cassell & Co. Ltd. v. Broome, supra, at p. 1073:

The expression "at large" should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in consequence no precise limit can be set in extent.

The Supreme Court in Hill, in stating, above note 47, that punitive damages are not “at large”, did not refer to the possibly different approaches in defamation and other cases. See Hodgson v. Canadian Newspapers Co. Ltd. (2000), 49 O.R. (3d) 161, at 184, 189 D.L.R. (4th) 241, 265, per Sharpe J.A.

John

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From: Neil Foster  
Sent: April 2, 2008 9:14 PM
Subject: Re: ODG: Lumley v Gye and greater damages

Dear Jason and others

Like you I can't put my finger on a specific case. But I note that in his excellent article on the background to Lumley, “Johanna Wagner And The Rival Opera Houses” (2001) 117 Law Quarterly Review 431-458 at n 20 Stephen Waddams referred to the pre-Lumley case of a singer named Jenny Lind who had been induced to break an exclusive contract and was forced to pay damages for breach, where

The amount of damages awarded against Lind was £2,500 (later settled for £2,000), but the takings of the theatre in 1847 for 39 nights of her performances were stated to be the enormous sum of £45,924, 6s.

So in theory if the contract breaker themselves was only subject to a particular fixed penalty for breach, but the breach of contract would lead to loss by the promoter of that sort of money, one could see how the tortfeasor might be required to pay the larger amount. But, as I say, right now I can't think of any cases where this has actually been the result - maybe because contracts don't often have the sort of "liquidated damages" clauses I have to suppose here?

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