Remedies: an introduction 

Remedies asks what a court should do once a legal right has been infringed, or once a benefit has been received with no legal basis for keeping it. It is a cross-cutting framework rather than a doctrinal silo: the right in question may come from contract, tort, equity or statute, while the appropriate response depends on the kind of loss, benefit or threatened conduct involved. That is why remedies is usually studied after the causes of action rather than before them.

The remedial question is not the liability question

A student who has established liability has answered only half of a problem. Whether a duty was breached and what should follow are separate questions, and they can have different answers: a breach may be established and still attract nominal damages, or an injunction may be refused although the right is clear. Keeping the two apart is the habit this area of law rewards.

Three questions, not one list

The remedial options divide by the question they answer rather than by the cause of action they follow:

• Has the plaintiff suffered a loss that money should make good? That is the compensatory question, and damages is its response.
• Is money inadequate, so that the court must compel, restrain or declare? That is the coercive and declaratory question, answered by equitable relief.
• Has the defendant received a benefit they have no basis to retain? That is the restitutionary question, and it is about the defendant's gain rather than the plaintiff's loss.

The third is the one most often missed, because it is easy to reach for compensation when the real complaint is that the other party is better off than they should be. Australian law treats it as a distinct claim, resting on restitution rather than on an implied contract.¹

Choosing the starting point

• Start with Damages as a remedy where the central issue is compensating a loss. It explains the measure of damages and the limits of causation, remoteness, mitigation and proof.
• Read Equitable relief: specific performance, injunctions and declarations where money may not be adequate and the question is whether to compel, restrain or declare something.
• Read Restitutionary remedies where the issue is a benefit received without a basis for retaining it, rather than compensation for loss.

More than one may be available on the same facts, and where they are, the question becomes which the plaintiff should elect and on what basis — not which the textbook lists first.

Applying this in a problem question

1. Identify the cause of action and establish it. The remedial analysis rests on it and cannot substitute for it.
2. Ask which of the three questions above the facts actually raise. Name the loss, the conduct to be restrained, or the benefit received.
3. Check whether the chosen remedy is available for that cause of action, in that jurisdiction, on those facts — availability is not uniform across contract, tort, equity and statute.
4. Deal with the limits before the quantum. Causation, remoteness, mitigation and proof dispose of more remedial claims than the measure ever does.

Self-check

• Have I established the cause of action before reaching for a remedy?
• Have I asked whether the complaint is about the plaintiff's loss or the defendant's gain, rather than assuming compensation?
• Have I checked availability in this jurisdiction, rather than assuming a remedy travels with the right?