Legislation in all Australian jurisdictions allows courts to award damages either in addition to, or in lieu of, specific performance or an injunction. Although damages awarded under this legislation are sometimes known as ‘equitable damages’, to avoid confusion with equitable compensation, they are called ‘Lord Cairns’ Act damages’ in this book.

Lord Cairns’ Act damages are primarily awarded for proprietary torts such as trespass, and for breaches of contract or negative covenant where no other relief is available (either because it is impossible or for discretionary reasons). Their calculation varies according to the facts of the individual case, and the rules are complex. They have also been awarded for equitable or statutory wrongs, but this is controversial.

As noted in this chapter, the placement of this remedy within a functional structure presents difficulties. Lord Cairns’ Act damages have been said to perform multiple functions including compensation and restitution. Strictly speaking, they do not compel performance, but award money instead. However, because they are a monetarised version of specific relief, they follow specific performance and injunctions for the pragmatic reason that they ‘fit’ best here.

The search for the causes of disease is an obvious central step in the pursuit of better health through disease prevention. In the previous chapters we looked at how we measure health (or disease) and how we look for associations between exposure and disease. Being able to identify a relation between a potential cause of disease and the disease itself is not enough, though. If our goal is to change practice or policy in order to improve health, then we need to go one step further and decide whether the relation is causal because, if it is not, intervening will have no effect. As in previous chapters, we discuss causation mainly in the context of an exposure causing disease but, as you will see when we come to assessing causation in practice, the concepts apply equally to a consideration of whether a potential preventive measure really does improve health.

This chapter considers self-help remedies, which involve the plaintiff making good her own rights without the intervention of the judiciary. The focus of this book is on remedies that are awarded pursuant to a judicial order. However, an exclusive consideration of judicial remedies would ignore the fact that most disputes are settled outside the courts and that most parties prefer non-judicial settlements. It may be queried whether self-help remedies are really remedies in the strict sense of the word. They do not involve a court order; instead, the court gives permission to a plaintiff to act in a particular way. Nevertheless, in a broader sense, the plaintiff is allowed to redress her grievance by vindicating her own rights. By allowing a plaintiff to redress her rights in this way, the law affirms and reinforces the importance of certain interests. As noted in Ch 13, Varuhas has observed that the interests protected by vindicatory awards are often associated with the torts actionable per se.

The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.

The importance of simple descriptive data was recognised by William Farr, whom we mentioned briefly in Chapter 1 for his seminal work using the newly established vital statistics register of England in the nineteenth century. As we discussed in Chapter 1, this descriptive epidemiology, concerned as it is with ‘person, place and time’, attempts to answer the questions ‘Who?’, ‘What?’, ‘Where?’ and ‘When?’. This can include anything from a description of disease in a single person (a case report) or a special survey conducted to measure the prevalence of a particular health issue in a specific population, to reports from national surveys and data collection systems showing how rates of disease or other health-related factors vary in different geographical areas or over time (time trends). In this chapter we look in more detail at some of the most common types of descriptive data and where they come from. However, before embarking on a data hunt, we first need to decide exactly what it is we want to know, and this can pose a challenge. To make good use of the most relevant descriptive data, it is critical to formulate our question as precisely as possible.

Most of the remedies discussed in this book are personal remedies (apart from the proprietary consequences of rescission). Personal remedies, as the name suggests, are directed at the person of the defendant. The defendant must comply with the court order. By contrast, proprietary remedies are directed at property to which the defendant holds title, not to the person.

Proprietary remedies are difficult to allocate on a functional basis. We have not attempted to do so, as the rationales behind the imposition of proprietary remedies vary, and the criteria for their award are uncertain and contested.

It should be noted at the outset that this chapter does not purport to provide an exhaustive account of proprietary remedies. It is presumed that the reader already has a knowledge of trust law and the principles governing the creation of trusts and equitable liens. What follows is an overview from a remedies perspective.

The availability of proprietary remedies in common law is limited. Even where the defendant has committed a proprietary tort, the common law tends to award damages as a remedy. There is no rei vindicatio, or ability of a plaintiff to demand the return of property from a defendant, at common law. Consequently, the proprietary remedies we discuss in this chapter are equitable in origin.

While it is important to be able to read and interpret individual papers, the results of a single study are never going to provide the complete answer to a question. To move towards this, we need to review the literature more widely. There can be a number of reasons for doing this, some of which require a more comprehensive approach than others. If the aim is simply to increase our personal understanding of a new area, then a few papers might provide adequate background material. Traditional narrative reviews have value for exploring areas of uncertainty or novelty but give less emphasis to complete coverage of the literature and tend to be more qualitative, so it is harder to scrutinise them for flaws. Scoping reviews are more systematic but still exploratory. They are conducted to identify the breadth of evidence available on a particular topic, clarify key concepts and identify the knowledge gaps. In contrast, a major decision regarding policy or practice should be based on a systematic review and perhaps a meta-analysis of all the relevant literature, and it is this approach that we focus on here.