"The Law Of Equity Came About To Remedy The Defects Of The Common Law System." Do You Agree With This Statement? Elaborate.

1107 words - 4 pages

1.0 IntroductionThe common law courts only provided the remedy of damages, which in some cases was an inappropriate remedy. The writ system was also slow to respond to new types of action and had many "loopholes". (Keenan, 1993) This weakness in the common law system lead to the development of equity. (Kelly, 2002) Ways in which the law of equity supplements the common law will be further discussed in this assignment.2.0 Common LawPrior to the Norman Conquest of England in 1066, there was no unitary national legal system. (Kelly, 2002) A uniformed and centralized legal system later emerged under the control of a centralized power of the sovereign king. Originally, courts were no more than an adjunct of the King's Council, the Curia Regis, but gradually, the common law courts took on distinct institutional existence in the form of the Courts of Exchequer, Common Pleas and King's Bench which dealt with separate matters in law. (Barron and Fletcher, 2003) A writ was granted when there was a denial of justice in the local courts. These writs were standardized and provided specific rights which could be enforced in the King's Courts. (Abbot, 1993) However, the writ system had "loopholes"; if a suitable writ was not available, the plaintiff will not be able to obtain a remedy no matter how just his claim. (Keenan, 1993)The common law uses damages as a remedy for cases. The aim of damages is to compensate the plaintiff. (Barron and Fletcher, 2003) A case example showcasing the use of damages as a remedy is Rogers v Whitaker (1991) 23 NSWLR 600. The defendant was a doctor who failed to advise his patient (the plaintiff) of the risks of an designed to improved the appearance and sight of one of her eyes. As a result, the plaintiff developed a complication known as sympathetic ophthalmia, which would occur in approximately 1 in 14000 cases and became blind. The judge decided that although the risk of developing the complication was low, the defendant had a duty to warn the patient. Therefore, the defendant was found negligent and had to pay damages to the plaintiff. (Barron and Fletcher, 2003)3.0 EquityEquity is defined as the body of cases, maxims, doctrines, rules, principles, and remedies which is derived ultimately from the specific jurisdictions established by the courts in the Australian legal system. (Haydon and Loughlan, 1997) It is used to supplement the common law by filling in gaps and making the legal system more complete. (Padfield, 1982) In general, equity does not intervene if the remedy of the common law is adequate.3.1 RemediesWhile the common law's remedies are in the form of damages, the equity's remedies include specific performance, injunctions, rescission and rectification.3.1.1 Specific PerformanceSpecific performance is an order of the court instructing a party to an agreement to perform his obligations according to the terms of that agreement. (Curzon, 1993)A case example is Doulton Potteries Ltd v Bronotte (1971) 1 NSWLR 591. In...

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