Where the claimant is the victim of a tort the most common remedy is damages to compensate him or her for loss suffered. But this is not the only remedy which is available. Exemplary damages may be awarded to punish the defendant for cynically committing a tort,[1] and other remedies are available which are purely restitutionary in effect, notably restitutionary damages and money had and received. The most important question relating to the award of restitutionary remedies for torts is whether they are available regardless of the tort which is committed or whether they are only available in respect of certain torts. If the latter is the case, it is then necessary to identify the criteria which are used to identify those torts for which restitutionary relief is available. The focus for this discussion is the so-called doctrine of ‘waiver of tort’ which has been particularly influential in the development of the law in this area.

  • [1] See Rookes v Barnard [1964] AC 1129. 2 [1941] AC 1, 34.
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