Aspects of damages 2

This project was the second of three in the Law Commission’s review of aspects of damages.

This project considered the rules in Bain v Fothergill and Joyner v Weeks. The Commission concluded that the rules established in the two cases were unjustified and contrary to principle. It proposed that they be abolished by amendments to the Property Law Act 1952.

In the other two projects, the Commission reported on employment contracts and the rule in Addis v Gramophone Co (see Aspects of damages 1) and recommended a comprehensive mandatory scheme for the award of interest on money claims in court proceedings (see Aspects of damages 3).

Aspects of damages: the Rules in Bain v Fothergill and Joyner v Weeks (NZLC R19, 1991)

The Commission's Report, Aspects of damages: the Rules in Bain v Fothergill and Joyner v Weeks (NZLC R19, 1991) arose from ongoing work on damages and the introduction into Parliament of the Employment Contracts Bill.

The rule in the Addis case denied damages for the harshness and oppression accompanying a dismissal from employment and any loss sustained from discredit thrown upon the employee. That limit is inconsistent with the general principles of the law of damages; the application of the rule is uncertain; its scope of application in New Zealand is narrowed in an anomalous way by legislative provision (also contained in the new Bill); and its continued force in New Zealand is unclear in the light of recent judicial decisions and criticism.

The abolition of the rule in Bain v Fothergill was implemented by the Property Law Amendment Act 1994.

The problems with the rule in Joyner v Weeks was partially addressed in Māori Trustee v Rogross Farms Ltd [1994] 3 NZLR 410 (CA). 

There was no requirement for the Government to present a formal response to Commission reports before April 2009.

See Official Government response process | Department of the Prime Minister and Cabinet (DPMC).