Philosophical Foundations of the Law of Unjust Enrichment by Robert Chambers Charles Mitchell James Penner

Author:Robert Chambers, Charles Mitchell, James Penner
Language: eng
Format: epub
Published: 2014-09-02T04:00:00+00:00

We have seen that in cases where a spare ship was utilized, the loss will be objectively quantified at the value of maintaining the spare (since the undesired consequence was the loss of use of the spare). But what about cases where no spare was utilized and the owner was simply deprived of the use of a ship as a result of the violation of his right to the integrity of the ship? The Marpessa was such a case. The facts were similar to the Mediana, but with the crucial difference that the claimant did not have a spare vessel. Like The Mediana, the claimant's vessel performed a non-profit service, namely the dredging of the sea-bed. But since the claimant did not have an available spare, the loss suffered during the repairs was (p.218) the inability to dredge the sea-bed, not the lost opportunity to maintain a spare. Although the dredger did not make a profit, the dredging of the sea-bed was desired by the claimant and the inability to do so (the loss) had a value to a reasonable person in the claimant's position. Lord Loreburn LC explained that this was the cost of maintaining and working the dredger as well as its depreciation: ‘Those services are at least worth what [the claimants were] habitually paying for them year after year, including … depreciation’.25 Another method sometimes used to assess the objective value of the undesired consequence is to say that the value to a reasonable person in the claimant's position of the undesired consequence of performance the non-profit service is the interest that could be earned on the money which was used to purchase a dredger. To a reasonable person in the claimant's position, the performance of the service was worth at least the value of the alternative (ie investing the money).26

Estimating undesired non-pecuniary consequences in pecuniary terms is extremely difficult and arbitrariness can sometimes only be avoided by comparing the awards for different non-pecuniary consequences. However, it is clear that the exercise is always objective. The award in Wrotham Park, discussed above, was a reasonable sum which reflected ‘a price for the relaxation of the covenant’ 27 even though the claimant would never have agreed to such a relaxation because the subjective value to the claimant of the covenant was probably far greater than the £ 2,500 awarded. Many, many other examples can be given. In the unwanted sterilization cases discussed above, the successful claimants received an objective award of £ 15,000, regardless of the personal, subjective value they placed upon their autonomy.28 The same objective approach is taken for awards of loss of amenity: the ability to enjoy the activities that the claimant was able to undertake prior to the infringement of his rights. The objective approach applied even to a claimant who is unconscious and incapable of subjective perception or appreciation of the loss of amenity. Such a claimant is nevertheless entitled to an award based upon a monetary estimation of the reasonable value of his amenity.

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