physical discomfort."
80
The veracity of this statement, however, is questionable
as contract damages for mental distress are now available.
81
The second argument is false because only some torts affect the public
interest.
82
The foundation behind the second argument is that only the victim
of a contractual wrong has an interest in that wrong not occurring. However,
the public at large only has an interest in those torts that injure people's health
or property not being committed.
83
Examples of torts that may only affect the
victim of the tort (and not the public at large) include injurious falsehood,
negligent misstatement or misrepresentation, deceit and passing off.
Cunnington also asserts that breaches of contract can, in certain circumstances,
affect public interest.
84
For example, if the provider of a fire-fighting service
fails to provide contractually stipulated number of fire trucks.
85
The third argument is false because if exemplary damages were awarded
for deliberate breaches of contract, businesses could be certain that, so long as
they sought in good faith not to breach their contracts, exemplary damages
could not be awarded against them if they inadvertently breach their
contracts.
86
The idea being that, only deliberate and intentional breaches of
contract would appropriately attract an award of exemplary damages. Further,
ensuring that contracting parties do not fail to perform their obligations by the
threat of awarding exemplary damages, will serve as a deterrent. Hence, the
certainty and predictability of contracts will be promoted as the contracting
parties will have more comfort in the likelihood of the contract being
performed to its full term.
McBride acknowledges that the fourth argument may be true, but says that
it is based on bad logic.
87
It assumes that because a contractual duty arises out
of an agreement between two individuals, so too must the response to the
breach of that contract. That is not necessarily true. The fourth argument
assumes that the assessment of damages for torts differs from the assessment of
damages for breach of contract. McBride rebuts this by adopting Lord Diplock's
approach,
88
that is to hold the opposite view that, the aim is to put the victim of
the tort or the victim of the breach of contract in the position he was to be in
had the tortfeasor or contract breaker complied with the duty which he or she
80
Thyseen Inc v SS Fortune Star 777 F 2d 57 (1985) at 63.
81
Farley v Skinner [2002] 2 AC 732; Jarvis v Swan Tours [1973] QB 233.
82
McBride, above n 73, 382.
83
McBride uses the example of the tort of defamation as a tort which only affects the person
being defamed. However, now that exemplary damages are no longer available for defamation in
Australia, that argument is no longer applicable.
84
Cunnington, above n 5, 379.
85
City of New Orleans v Fireman's Charitable Association 9 So 486 (1891).
86
McBride, above n 72, 382.
87
McBride, above n 72, 382-383.
88
See Albacruz (Cargo Owners) v Albazero (Owners), "The Albazero" [1977] AC 774 at 841 C-D.