Kolkata Kali IV

When some writers from the sub-continent or even from the west for that matter write about the Goddess Durga and the Goddess Kali especially with reference to the battle with the asura Mahishasura and the asura Raktabīja they often use strong terms like mashed, mangled, decapitated, shred to pieces etc. when it comes to describing the fate of the asuras in the momentous battle. There is a reason for this and it stems from the Shakta Sects or the sects that worship the Goddesses.

The Shaktas attribute all positive energies and the proper functioning of all their bodily organs to the Devi’s or the Goddesses.

In the Durga Kavach for example, a prayer that is recited for protection, every organ in the body has a corresponding Goddess. The presiding Devi is Chamunda or Chamundi, a manifestation of the Goddess Durga.

I am going to cite a small portion of the prayer as an example: – “May Maladhari (Goddess) protect my forehead, Yashaswini (Goddess) my eyebrows, Trinetra (Goddess) the space between my eyebrows, Yamaghanta (Goddess) my nose, Shankini (Goddess) my eyes, Dwaravasini (Goddess) my ears and Shankari (Goddess) the roots of my ears”.

From the passage above, we can adduce that Shaktas attribute all parts of their body, their conscious thoughts and their unconscious thoughts, in the waking state, the dream state and the transcendental state, to the Goddesses. The Goddesses in short are the core of their existence and form the very fibers of their body.

Likewise, Shaktas attribute all negative energies, hate, anger, lust etc. and all disease, pestilence, sickness and illness, to the asuras and therefore when they refer to the battle between the Goddesses and the asuras it is metaphoric of their own battles with the negative energies that seek to attack their bodies.

Therefore, they seek to crush, mangle, and decapitate any invasion be it in the form of an illness or otherwise to their bodies and that is the reason why the language that is used when referring to the battle with the asuras is strong or at times violent. It is reflective of the manner in which Shaktas deal with an attack natural or otherwise.

The representation of the Goddess Kali that is worshipped in Dakshineswar is called Dakshina Kali or the Black Goddess of Kolkata. She is an extremely potent manifestation of the Goddess and just to give our readers an example of how highly she is regarded, while on a trip to Rajasthan my father approached statute makers to purchase a black granite statute of the Goddess and they agreed to sell him one.

He took possession of the statue in the prescribed manner but before the statute was handed over the head of the statute was covered and the statute was boxed with the stipulation that the statute should be unveiled only after it has reached its destination. That is how particular they are.

Sometimes it is not a matter of wanting to buy or having the money to buy, the makers won’t just sell a statute of Dakshina Kali to anyone, not one that is made in the prescribed manner anyway. Similarly, not everyone is allowed to see the statue.

Part of the mystery that surrounds the worship of the Goddess Kali is due to the activities of a cult of assassins known as thugees who contributed to approximately two million deaths, prior and during British rule of India. The origins of the cult date back to the early 1300s. They were a highly skilled secret society who operated in conditions of extreme anonymity and membership was often handed down from father to son. They were very organized and operated in various parts of the subcontinent including Kolkata. The thugees were so secretive that they even had a jargon of their own called Ramasi.

Their activities were rampant and widespread to the extent that the British were forced to enact the Thugee and Dacoit Suppression Acts of 1836 – 48 to clamp down on them. The act made it a crime for anyone to be a member of a thugee cult and if convicted, the accused was sentenced to life imprisonment and hard labor.

Thugees preyed on merchants and travelers and because of their highly secretive nature, they left behind no eyewitnesses. Children however were not harmed and any child that belonged to any victim, because of the code of secrecy members of the cult abided by, were adopted by the cult and were, after being trained in the appropriate manner, initiated into the cult.

Brahmins or priests and women however were never harmed. The former because they were priests and the latter because they were defenseless and in that aspect, they had a similar code to the kshatriyas. Members of the cult were reputedly worshipers of the Goddess Kali.

Copyright © 2017 by Dyarne Ward

Kolkata Kali III

The Goddess Kali glared at the asura Raktabīja but the asura refused to concede and continued with his brutal onslaught, despite the fact that the other asuras in his division were decimated. The fighting continued but only this time, every time Raktabīja was cut, the Goddess would drain the blood that oozed from the cut, before it fell to the ground, and Raktabīja whose sole defense was his boon from Brahma was soon incapacitated and the debilitated asura sank to his knees. By then however the Goddess had gone into a frenzy and with one fluid stroke of her sword removed the head of the asura from his shoulders.

The killing however did not stop with the demise of Raktabīja and the Goddess intoxicated by the blood of the asura continued with her killing spree, hacking and cleaving her way through the ranks of the asuras, grabbing them with her mouth, gnawing away at them, chewing on their mangled bodies and spitting out the remains, until there were none left.

Her unprecedented actions sent the Devas into a panic and fearing that they would be next they once again extolled the Hindu Trinity for help. In the meantime, the Goddess continued to pound on the fallen carcasses with her feet and a distraught Shiva, having heard the pleas of the Devas and fearing the worst descended from his abode at the summit of Mt. Kailash and lay naked among the sprawling corpses.

As the Goddess continued to stomp her way through the dead asuras she stumbled across the sprawling body of Shiva and as she lifted her foot to stomp on his body, she realized that it was her a husband that was lying in front of her and she hung her tongue out in shame. That is the reason why Kali is often depicted with her tongue hanging out.

Every aspect of the story including the manner in which the asuras were decapitated by the Goddess has some meaning attached to it especially among the Shakta Sects (sects that worship the Goddesses) and I will try to put them into perspective and elaborate on the meaning.

According to the most learned sources in the field the Goddess Kali is best worshipped with humility and this means at the time of worship one must have minimal clothes on. This is also the reason why she is often depicted with only a skirt of human body parts. We must also keep in mind the fact that Shiva himself prostrated naked before her. To give a more contemporary example, Swami Ramakrishna, probably the most learned authority in the field, was often seen with only a piece of cloth tied around his waist.

When one approaches the Goddess Kali in earnest one does so by doing away with all material possessions and one worships her with minimal attire and without any bodily accessories. It signifies that one is worshipping the Goddess with deference and her worship means more to him or her than material wealth or possessions.

Worship of the Goddess Kali lifts the veil of ignore that we are often covered in and allows us to attain the higher truths. Kali in reality is worshipped for knowledge and those who worship her are normally very learned people.

Secondly, I am going to attempt to tackle the preoccupation with animal sacrifice that is often associated to the Goddess Kali. Kali is a Hindu Goddess and therefore she is a vegetarian and she should only be worshipped if one desires to do so, with vegetarian offerings.

The sacrifices are for the asuras that she defeated. Upon defeat the asuras that she felled are resurrected and they become her attendants. The asuras in reality do not die but are rather subjected to the will of the Goddess.

When one looks at the depictions of the Goddess Kali one realizes that she is often depicted with a garland of heads belonging to the asuras that the Goddess crushed, mangled, and maimed on the battlefield. These asuras after their crushing defeat were resurrected to become part of her entourage and when one worships the Goddess one has a choice or worshipping the Goddess herself or drawing on the powers of her entourage.

It is therefore possible to draw on the power of the asuras or their energies and while there isn’t any need to, the results are much quicker.

Hate, anger, fury, all of which are negative energies are also very potent energies. When one draws on the energies of the asuras, however, one must be exceptional pious because the energies though, fast, strong and rewarding can also consume the person who draws on it especially if he or she doesn’t have the discipline that is required or uses it for the wrong purposes.

Copyright © 2017 by Dyarne Ward

Elements in a Contract XXIII – Remedies -Damages III – Causation & Remoteness II

In Victoria Laundry (Windsor) Ltd. v Newman Industries Ltd. (1949) the plaintiffs contracted to purchase a boiler from the defendants for use in their existing laundry business with the intention of expanding their business. The plaintiffs were also vying for a lucrative government contract and if they were successful in obtaining the contract, their weekly income would increase manifold. The defendants were aware of the nature of the plaintiffs’ business but were not aware of the fact that the plaintiffs were eyeing a government contract.

The boiler was damaged just prior to delivery and there was a substantial delay in repairing the boiler and as a result the plaintiffs not only lost income resulting from their normal business but also lost the valuable government contract that they were after. The plaintiffs sued.

The court held that the plaintiffs were able to recover for the loss that they incurred for their normal business because such loss was within the contemplation of the parties at the time they entered into the contract but could not recover for the loss of the government contract because the defendants were unaware that the plaintiffs were vying for a government contract.

In The Heron (II) (1969) the plaintiffs chartered a ship to deliver a cargo of sugar to Basrah. The cargo was to arrive in 20 days but because the defendants had strayed from the normal route that ships normally took, there was a delay and the ship arrived 9 days late.

During that time, the price of sugar in Basrah fell significantly and the plaintiffs sued for the difference between the price they would have got had the ship arrived on time and the price that they actually got. The defendants argued that the damage was too remote and that it was not within their contemplation at the time the parties entered into the contract.

The court held that it would have been within the contemplation of the defendants that the plaintiffs intended to sell the sugar as soon as it arrived in Basrah. Sugar is a commodity and its market price fluctuates almost daily. The defendants must have known that even the slightest delay could have reduced the plaintiffs’ profit margin significantly and therefore the defendants were liable for the difference.

In Parsons v Uttley Ingham (1978) the plaintiffs purchased a food storage bin from the defendants. Due to the defendants’ negligence, the ventilator hatch was left shut and as a result the nuts that were stored in the bin became moldy. The nuts were fed to the pigs and the pigs became ill. Many died as a result and the plaintiffs sued for damages. The defendants argued that the damage was too remote and that they did not contemplate the type or degree of illness that the pigs were stricken with.

The House of Lords held that it was sufficient that the defendants could contemplate that there was a serious possibility that the pigs would contract some form or type of illness as a result of their negligence and therefore the defendants were liable.

In Transfield Shipping v Mercator Shipping (The Achilleas) (2008) the defendants chartered a vessel from the plaintiffs and returned the vessel 9 days later than expected. The plaintiffs in the meantime entered into negotiations to charter out the vessel to another party for a stipulated price.

During the 9 day delay the market price for chartered vessels overall, had fallen and the plaintiffs had to renegotiate the contract at a new rate which was lower than the original rate that they had discussed. The plaintiffs sued for the difference.

The plaintiffs argued that they should be compensated for each day of the new charter while the defendants argued that they were only liable for the 9 additional days that they had the vessel.

The House of Lords held that the defendants were liable only for the 9 additional days. The defendants could not have contemplated the damage that was incurred as a result of the follow-on contract and that the loss of profit for the next charter was not within the scope of the second limb in Hadley v Baxendale (1854).

The general rule in the shipping industry is that liability is restricted to the difference between the day the charterers were due to return the vessel and the period that they had overrun. To do otherwise would create uncertainty in the market.

Copyright © 2017 by Dyarne Ward

Kolkata Kali II

The story of the Goddess Kali begins when the asura Mahishasura invades Indra’s Kingdom of Heaven. While some authors equate asuras to the western equivalent of demons, they are not the same. Asuras and the devas are of the same race. They are both descendants of the Saptarishis.

A more precise definition of the asuras would be that they are those that embody the negative powers of creation while the devas are those that embody the positive powers of creation but because both the devas and the asuras were created from the same fabrics i.e. the fabrics of the universe, it is possible to draw upon both their energies to achieve a specific end or to perpetuate a specific outcome. Both the story of the Goddess’s origins and the definition of asuras that’s been given here will help us understand or comprehend the more common and contemporary aspects of Kali worship.

Asuras are not or have nothing to do with spirits or the returning spirits of the dead and they do not possess victims. It may be easier to infer or refer to asuras as those that bear the qualities of evil (negative energies).

It is also important to acquire some knowledge of the asuras because their roles do not end with their deaths in the hands of the Goddesses and we must keep in mind that the all merciful and compassionate Durga and Kali do not kill in vain and whenever there is death, there is resurrection.

Mahishasura is the son of the asura King Rambha who while he is out one day falls in love with Princess Shyamala who was cursed to occupy the form of a female water buffalo. The union between them results in the birth of Mahishasura and the child at birth acquires all the prowess of the asuras including their ability to undertake severe austerities and perform acts of rigorous penance to gain boons.

It is also worth mentioning that among the three divinities in the Hindu Trinity, there are only two that grant boons, Brahma and Shiva. Brahma is the easiest of the three Gods to please and Shiva is the hardest. Vishnu, the second divinity in the Hindu trinity, because he embodies the powers of procreation and continuity does not grant boons and often, it is up to Vishnu or his female equivalent the Grand Goddess, the Devi of all Devi’s, to assume an avatar and descend on to the earth to undo the boons that have been granted by either Brahma or Shiva.

Mahishasura followed in the lead of many of the other asuras, and after years of performing severe penance, Brahma appeared before him and granted him a boon. Mahishasura requested for immortality in that he could only be defeated by a woman.

We must keep in mind that, at the time Mahishasura requested for the boon, there was no woman in existence who could defeat an asura as powerful as Mahishasura. Brahma accordingly granted him the boon and Mahishasura returned to the land of the asuras and convened his armies before he began a ruthless siege on the Kingdom of Heaven.

A distraught Indra approached the Hindu Trinity for help and because of the boon granted by Brahma, the Trinity had to create a new woman, a Goddess, to defeat Mahishasura. The three divinities Brahma, Vishnu and Shiva came together and using the creative energies vested in each of them, brought to life the Grand Goddess Durga.

The Goddess instantly took to the battlefield astride her magnificent tiger, each of her eight arms bearing a separate weapon.

The asura divisions were led by different generals all of whom had acquired separate boons from Brahma including a particularly potent asura called Raktabīja. The asura had acquired in the same manner Mahishasura had done, a boon from Brahma in that, for every drop of his blood that was spilled, a new Raktabīja would appear.

Having smashed her way through the ranks of the asuras, pounding on their corpses and reducing their remains to dust that scattered to the four corners of the world, the Grand Goddess, found herself face to face with Raktabīja and he posed a complex problem.

Every time he was wounded and drops of his blood fell to the ground, hundreds if not thousands of Raktabīja’s would spring up and the Devi had to redouble her efforts. The wise Goddess drew on the collective energies of the Hindu Trinity that flowed in her veins like ripping currents and manifested as the Goddess Kali.

Copyright © 2017 by Dyarne Ward

Elements in a Contract – Frustration

If for some reason, once a contract has come into existence, the parties in the contract are unable to fulfill their obligations then the contract comes to an end as a result of frustration. It is impossible to compile an exhaustive list of circumstances that will result in a contract coming to an end because of frustration and nothing illustrates the matter more eloquently than case law.

In Taylor v Caldwell (1863), the plaintiffs (claimants) went to great lengths to organize a concert and spent quite a large sum of money in getting the concert hall organized. A week prior to the concert, there was a fire and the concert hall was burnt to the ground. The plaintiffs sued the owners of the hall for a breach of contract. It was held that the contract came to an end due to the fault of neither party i.e. frustration.

In Knight v Ashton Edridge & Co (1901), a contact was entered into for the sale and purchase of cotton seeds. The ship carrying the consignment left from Alexandria but sank while it was en-route to the destination. They buyer sued the plaintiff for breach of contract but the courts held that the contract came to an end because of unavoidable circumstances and it was no longer possible to fulfill the terms of the contract.

In Krell v Henry (1903) the plaintiff hired his flat out to the defendant so that he could view the coronation procession from his flat window. The defendant paid a deposit but did not pay the full amount that was due because the coronation procession was subsequently cancelled. The plaintiff sued for the outstanding amount but the court held that the defendant was not liable because the object of the contract could no longer be satisfied or fulfilled.

In Herne Bay Steam Boat v Hutton (1903) the plaintiff rented out his steamship and later made arrangements to ferry passengers to watch the naval review during the coronation of King Edward VII. The coronation was later cancelled and the defendant refused the use of the ship. The plaintiff sued for the outstanding amount but was unsuccessful because the courts deemed that the contract had been frustrated.

In Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour (1943) a company in England entered into a contract with a company in Poland to supply machines. The buyer agreed to make partial payment prior to delivery on the understanding that the full amount would be settled once the machines were delivered. Subsequently Germany invaded Poland and the machines could not be delivered. It was held that the contract had come to an end because it was no longer possible to fulfill the terms in the contract.

In Condor v Baron Knights (1966) the plaintiff, a drummer, was employed by the defendants to play in their band. The plaintiff subsequently suffered a mental breakdown that made it impossible for him to continue. The defendants dismissed him and the plaintiff brought an action for wrongful dismissal. It was held that the subsequent change to the plaintiff’s health rendered the contract impossible to fulfill and hence the plaintiff was unsuccessful.

In Maritime National Fish Ltd v Ocean Trawlers Ltd (1935) (Privy Council) however, the charterers of a ship were running five ships that required licenses to operate them and the charterers had been granted three licenses. The charterers later claimed that the contract was frustrated by the government’s refusal to make available more licenses and sought to end the contact. The owners of the ship sued and it was held that the charterers had been granted three licenses and that they only needed one to operate the ship. Therefore, the contract had not been frustrated.

Likewise, in Davis Contractors v Fareham UDC (1956) the defendants agreed to purchase a certain number of houses from Davis Contractors. Under the terms of the contract the houses were to be completed by a certain time. Subsequently there was a shortage of materials and manpower and the houses took longer to complete than anticipated and the cost of the houses also increased. The defendants agreed to take hold of the houses but refused to pay the additional costs. The plaintiffs (Davis Contractors) sued. It was held that the contract had not been frustrated. It is not hardship or economic difficulties that leads to a contract being frustrated but rather a change in circumstances, so significant that, if the contact were to be performed it would be substantially different to what was contracted.

Copyright © 2017 by Dyarne Ward

Elements in a Contract XXII – Remedies -Damages II – Causation & Remoteness I

In deciding whether the plaintiff is entitled to damages for a breach of contract the court will take into account two factors:-

i) Causation

ii) Remoteness

Causation

It order for the plaintiff to be awarded damages the defendant must have caused the damage. The damage must be actual and tangible as opposed to something that could or may have caused damage. It however need not be the sole factor that caused the damage.

When looking into causation the courts will look into the chain of causation or the sequence of events that led to the damage and in order for the plaintiff to be awarded damages there must not be a break in the chain of causation i.e. the damage must be a direct consequence of the defendants actions.

In Monarch Steamship Co Ltd v Karlshamns Oljefabriker (1949) the defendants’ ship was chartered to carry soya beans from Manchuria to Sweden. The defendants in the contract had agreed to provide a seaworthy vessel but the ship developed problems and there was a delay due to repairs in Egypt. Once the repairs were completed the ship set sail to Sweden but by then the Second World War had started and the Royal Navy ordered the ship to sail to Glasgow instead.

The plaintiffs organized for the cargo to be shipped from Glasgow to Sweden and brought an action against the defendants. The defendants argued that that the ensuing war had broken the chain of causation but the court ruled otherwise. It was not the war that caused the delay but the ship’s un-seaworthiness and that it (the un-seaworthiness) was the dominant cause for the delay.

It is worth comparing the decision in Monarch Steamship Co Ltd v Karlshamns Oljefabriker (1949) with that in Quinn v Birch Bros (builders) Ltd (1966). The plaintiff, in the latter case, was an independent subcontractor who undertook plastering work for the defendants. The defendants had a contractual obligation to supply the equipment that was necessary for the subcontractor to carry out his work efficiently but failed to do so.

As a result the plaintiff found a folded trestle and stood on it to complete his work. The trestle gave way and the plaintiff was injured in the accident that followed. The plaintiff sued.

The court held that it wasn’t the defendants’ breach of contract that caused the accident but rather the plaintiff’s decision to use unsound equipment.

The use of an item that was not in the terms of the contract or the plaintiff’s choice to use an item that would not be otherwise used in the manner that it was had broken the chain of causation and the defendant was therefore not liable.

Remoteness

Once it is established that the defendant did indeed cause the plaintiff damage by breaching a term of the contract, the courts will look into the aspect of remoteness.

The rules with regards to remoteness in contract cases were given in the leading case of Hadley v Baxendale (1854). The plaintiffs, mill owners, commissioned carriers to ferry a crankshaft for repair. The mill could only be operated with the crankshaft in place and until such time that the crankshaft was replaced, the mill would remain ideal. The carriers agreed to return the crankshaft within a stipulated time but because of their negligence the crankshaft was returned to the plaintiffs a week later than expected. The plaintiff sued for the loss of profits incurred between the agreed time of delivery and the actual time of delivery. It was held that in order for damages to be awarded for a breach of contract:-

i) It must be damage arising from a breach of the terms of the contract that may be considered reasonable and

ii) the damage should be in the contemplation of both parties to the contract, at the time the contract was entered into, as a likely result of a breach.

Because the defendants were unlikely to contemplate the result of the breach as the mill not being able to operate i.e. the second of the above two limbs, they were not liable.

The fact that a crankshaft would cause a mill to come to standstill was not something that would be within the contemplation of the defendants and under normal circumstances it would be fair to say that the plaintiffs, considering the importance of the crankshaft, would have had a spare or would have made arrangements to acquire a temporary crankshaft until theirs was returned.

Copyright © 2017 by Dyarne Ward

Kolkata Kali I

I have titled this post Kolkata Kali to pay tribute to the city that has done so much to promulgate the worship of the Goddess Kali. My father a devout worshipper of the Goddess often tells me, “to truly acquiring her blessings one has to visit Kolkata and once there one has to set foot on the sacred grounds of the Kali Temple in Dakshineswar”. It is something that I look forward to doing fairly soon. Much of what I have learnt of the Goddess Kali is from him and I hope to pass the knowledge on to my daughter.

It is only fitting that we start with the Kali Temple in Dakshineswar where the worship of the Goddess Kali is centered. It is located in the state of West Bengal where many of the saints and sages who have attained the highest form of realization by worshipping the Goddess Kali once lived.

The Dakshineswar Temple was built by Rani Rasmani (1793 – 1861) a lady of substance, who according to most sources was born in a lower caste family of little means. It is fair to say that her early life wasn’t at all easy. Despite her humble beginnings she was very beautiful and in time she married a wealthy man.

Rani was a devout worshipper of the Goddess Kali and upon her husband’s death, she took on the duties of managing his estates and in so doing built the Dakshineswar Temple that stands tall to this very day. Its grounds have been graced by the presence of the most learned authorities in the field including Swami Ramakrishna and his disciple Swami Vivekananda.

Rani Rasmani was a woman of some fortitude. Bearing in mind that she lived at a time when education was not made available to women, especially women of lower castes, and the common perception was that the place of a woman was beside her husband, she managed to create something that has become known in the farthest corners of the world and is valued for both its extrinsic and intrinsic contributions.

Within the compounds of the Temple there is a main temple and twelve Shiva Temples and it is symbolic of the relationship between Shiva and Shakhi. The former is represented by the linga and the latter is represented by the yoni and this nexus is the centerpiece of all Hindu religious rites and rituals that originate from the Indus Valley Civilization or the Mohenjo – Daro and Harappa civilizations.

From all accounts Dakshineswar generates or reverberates with harmonious vibes that echo throughout the grounds and the distinction between the Shiva Sects and Vaishnava Sects that pervade many other places of religious worship appear to vanish as soon as one steps into this holiest of places.

I have in the past had the opportunity to liaise with traders in Bengal and others who have been on a pilgrimage to Dakshineswar and all of them have told me similar stories. Some of them have even told me stories of an enchantingly pretty lady clad in a white saree adorned with exquisite jewelry that they’d met during prayers in Dakshineswar and one or two of them have actually said that during prayers, when they have worshipped the Goddess with a heavy heart, laden with troubles, the lady in the white saree had appeared to deliver them from their troubles. These of course were men who worshipped the Goddess with a great deal of sincerity.

Persons of all religions are welcome to visit the sacred grounds of Dakshineswar and there is a great harmony that prevails. There are no signs or traces of religious discord or intolerance.

North of the Kali Temple there is a temple dedicated to the worship of Krishna and Radha and it is not uncommon to find devotees boisterously chanting “Hare Krishna Hare Krishna, Hare Rama Hare Rama”. Like the Kali Temple, the Vishnu Temple (Krishna is an avatar of Vishnu) is built on an elevated platform.

There is an interesting story about the statue of Krishna that is worshiped in the temple. While the priest of the temple was carrying the statue, three months after the temple was built, he slipped and fell and in the process dropped the statue. The statue fell to the ground and one of its legs was broken.

Rani Rasmani when she heard of the mishap was extremely disappointed because it is considered an ill omen to worship a broken statue and the priests suggested that they immerse the statue in the waters of the Holy River Ganges.

A distraught Rani was about to agree when Swami Ramakrishna himself intervened. He said “what do you do when a person breaks his leg?” …. “you send him to the doctor”. Therefore there was no need to immerse the statue in the waters of the Ganges and instead he told the priests to have the leg fixed and return the statue to its original place. The priests did just that.

Copyright © 2017 by Dyarne Ward

Elements in a Contract XXI – Remedies – Damages I

Remedies for a breach of contract are divided into common law and equitable remedies. Common law remedies are divided into:-

i) Damages

ii) Restitution

Damages

In Robinson v Harman (1848) it was held that where a party sustains loss by reason of a breach of contract, he is, so far as money can do it to be placed in the same situation, with respect to damages, as if the contract had been performed.

In order to be awarded damages the aggrieved party must satisfy the three following conditions: –

i) The party has suffered some type of loss as a result of the breach.

ii) The loss is recognized as a loss that gives rise to compensation.

iii) The loss must not be too remote or must be directly foreseeable see The Wagon Mound (1)

Loss can be divided into financial loss or pecuniary loss and non-financial or non-pecuniary loss as in instances where the defendant suffers from a mental illness for example in the case of Condor v Baron Knights (1966) where the plaintiff suffered from a mental illness as a result of long hours of practice.

In Addis v Gramophone Co Ltd (1909) the plaintiff was employed by the defendant company in Kolkata. He was subsequently wrongfully dismissed and as a result went through a great deal of mental anguish from being shunned or avoided by the British Community in Kolkata. He brought an action against the plaintiff for loss of earnings (income) and for mental distress. The court held that the plaintiff was entitled to be compensated for the loss of earnings but he was not entitled to be compensated for mental distress.

The decision in Addis v Gramophone Co Ltd (1909) has to be looked at in light of the earlier case of Hobbs v London and South Western Railway Co (1875). The plaintiffs boarded a train that failed to deliver them to the correct destination and they sued as a result. It was held that in addition to the plaintiffs being able to recover for breach of contract, they were also able to recover for the physical inconvenience of having to walk to their destination.

Part of the problem with regards to mental illnesses or mental distress is the difficulty in determining the monetary equivalent of mental illnesses or mental distress and there is no way to estimate or calculate damage resulting from mental illnesses or distress or translate it into monetary terms.

In Bailey v Bullock (1950) the plaintiff was forced to live temporarily in a smaller house because the defendant firm had failed to recover his house. The court held that the plaintiff should be compensated for the discomfort he’d incurred by living in a smaller home.

In Diesen v Samson (1971) the defendant was a photographer who was hired to take photos of the plaintiff’s wedding but for some reason or other the defendant failed to turn up. The distressed plaintiff sued and the court awarded her damages for not being able to have any wedding photographs.

In Jarvis v Swans Tours Ltd (1973) the plaintiff had paid for a holiday aboard and had based his decision on what had been printed on a travel brochure. The plaintiff however, after he had arrived at the destination, realized that the holiday was nothing like what had been advertised in the brochure and he sued. The Court of Appeal held that the defendant was not only entitled to be compensated for the monies he had paid but was also entitled to be awarded some form of damages for the disappointment that he had suffered.

In Jackson v Horizon Holidays (1975) the plaintiff booked a holiday with his family aboard based on what had been advertised. When they arrived at their holiday destination, they found that the living accommodations were nothing like the advertisement and the conditions were unsatisfactory. As a result, the plaintiff sued for compensation not only for himself but also for his wife and family. It was held that the plaintiff was not only entitled to recover for the disappointment that he’d suffered but was also able to recover for the disappointed incurred by his wife and children.

In Heywood v Wellers (1976) the plaintiff was being stalked by a former lover and she approached the defendants, a solicitors firm to take out an injunction against her stalker. The defendants negligently failed to take out the injunction and as a result the harassment continued and the plaintiff suffered much distress. The court held that the plaintiff was entitled to be compensated for the distress that she had suffered and was accordingly awarded damages.

In Ruxley Electronics and Construction Ltd v Forsyth (1995) the plaintiff employed the defendant to construct a swimming pool that was deep enough to allow the plaintiff to dive – a hobby that gave him a great deal of pleasure. The defendant did construct the pool but not to the specifications that were stipulated or the depth that was required and the plaintiff sued on the grounds that he would not feel save diving. The court awarded the plaintiff damages for the loss of pleasure. The swimming pool was no doubt constructed to allow the plaintiff some time to enjoy the things that he cherished and the fact that he could no longer feel safe doing so gave rise to damages.

In Perry v Sidney Phillips and Son (1982) the plaintiff employed a surveyor to inspect a house prior to purchase and was assured that the house was in good order. Upon purchase the plaintiff discovered that the house was in need of repair and many of the basic amenities that one would take for granted weren’t working or functioning properly. The court held that in addition to recovering for the lower value of the house the plaintiff was also entitled to damages for the physical discomfort that he’d suffered by being forced to live in a faulty house.

Similarly, in Farley v Skinner (2001) the plaintiff employed a surveyor to inspect the land where he was about to construct a home to allow him to enjoy the pleasures of the countryside after his retirement, with regards to noise caused by air traffic because the land was close to Gatwick. The surveyor upon inspection assured him that he would be able to retire in peace and quiet. The plaintiff had his home constructed and when he moved in he realized that the noise resulting from the air traffic was unbearable and he sued. The plaintiff was awarded damages for distress that resulted from aircraft noise because he had specifically employed the surveyor to assess the impact of aircraft noise.

Copyright © 2017 by Dyarne Ward

Elements in a Contract XX – The Misrepresentation Act 1967

The Misrepresentation Act 1967 also governs the law on misrepresentation. S2(1) of the act states that: – Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true.

Under s2(2) of the act the court has a discretion to award damages instead of rescission. “Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party”.

When there has been breach of contract, especially for fraudulent misrepresentation or a breach of s2(1) of the Misrepresentation Act 1967, the courts are more inclined to award damages. In cases of negligent misstatements damages are awarded to put the parties back in the position they would be in, had they not entered into the contract and it is not to allow the aggrieved party to profit from the deceit of another. Therefore, the damages that are awarded may at times be less than the damage that was suffered or incurred.

In Doyle v Olby (Ironmongers) Ltd 1969 for example, the plaintiff (claimant) purchased a business from the defendant and entered into the contract based on statements made by the defendant that inflated the profits of the business and the scope of the business. When the plaintiff discovered that these statements were untrue he brought an action against the defendants on the grounds of misrepresentation and his claim was upheld. The court held that in instances of misrepresentation the plaintiff was entitled to claim for damages that directly resulted from or was directly caused by the fraudulent misrepresentation regardless of whether the loss was foreseeable or otherwise.

In the all the three categories of misrepresentation i.e. fraudulent misrepresentation, negligent misstatement, and innocent misrepresentation the court has a discretion to either award damages or to allow rescission.

In assessing damages the court will take into account the remoteness of the damage. The common-law test to assess the remoteness of damage for negligent misstatements is the test given in the Wagon Mound (1) (1961). The defendant’s vessel the Wagon Mound was docked in a wharf in Sydney and unknown to the defendant the boat leaked oil and the resulting fire caused damage to not only the defendant’s vessel but also to the wharf and to 2 other vessels. The court had to determine the scope of the defendant’s liability. It was held that the defendant was only liable for the damages that he could foresee and the court found in favor of the defendant supplanting or overruling the earlier decision in Re Polemis.

In Re Polemis (1921) one of the men employed to load and unload cargo from a ship dropped a plank into the ship’s cargo hold and the plank struck a flint which caused a spark that came in contact with petrol fumes and the resulting fire spread to the hull of the ship and set the whole ship on fire. The court had to decide as to the extent of the defendant’s liability.

It was held that the defendant was not only liable for the damages that he could foresee but was also liable for all the other damages that resulted as a consequence of his action(s) regardless of whether the damage was foreseeable of otherwise. It suffices that the defendant caused the initial act which set in motion a chain of events that resulted in damage that would otherwise not have been foreseeable by a reasonable man.

Copyright © 2017 by Dyarne Ward

The Tamang Shaman

The old weathered shaman sits idly on a block of land that he calls his own, handed down to him no doubt by his predecessors who had either purchased the land or were granted the title to it, for services rendered during colonial times. He stares out in the open, seated on a rickety stool on the verandah of a hut surrounded by the banana trees that he grows for a living. The sun is high and its luminous rays beat relentlessly down on the rugged graveled land below.

The sounds of distant drumming echo over the horizon and he hums a little tune. In the valley below a group of young men are beating on a set of tin pan drums. He sings of a young man, on the verge of death, whose soul leaves his body and drifts towards the clouds and there he meets a young maiden and he is instantly taken in by her. His soul returns to his body and the maiden follows him back.

The clock strikes twelve and it will soon be time for lunch. He gets off the stool and makes his way to the rear of the hut where he has a chicken coop and selects a nice fat black rooster. It would do nicely, he says to himself.

He takes the rooster out of the coop and tucks it under his arm. He then walks into the hut to the wall where his knife hangs silently still, its blade protected by a leather sheath. He grabs it and tucks it under his belt and walks out the front door. He returns to the stool and as he sits down he pats the rooster on the head.

Minutes pass by and he hears someone removing the latch on the front gate. A loud creak ensues as the gate is pushed open, followed by the sounds of footsteps. “The boys are here” he says to the rooster and true enough three young men armed with tin pan drums and wooden sticks which they use to beat the drum with, walk up to him. The utter a customary greeting and he responds in the time honored manner.

He stands up and walks towards a designated spot right in the middle of a clump of banana trees and the youths follow closely behind. The hour is just past twelve and the hot afternoon sun is blaring down on them. He looks at the young men and asks them to begin. The boys respond by beating on the drums.

The man starts dancing with the rooster tucked beneath his arm. Then without warning he removes the knife that is tucked beneath his belt from its sheath and in one smooth fluid stroke severs the head of the rooster from its body. The music stops and he hands the bloodied remains to one of the young men while he buries the head of the rooster at the foot of one of the banana trees that appears slightly taller and sturdier than the rest.

The man and the boys make their way back to the hut where they remove the feathers from the carcass before the meat is cut up and cooked. It looks like chicken curry is on the menu.

That night, the front of his hut is filled with villagers, some of whom have brought gifts of fruits and other homemade items with them. The boys from the afternoon are there again beating on their tin pan drums. Incense sticks are lit and the air is filled with the scent of burning camphor. Benzoins are set alight and as the drum beats get more intense the man inhales the smoke from the benzoins.

Soon after his body starts to shake and tremble and his facial contours change. There is a transformation and he starts to speak in another voice, slightly high pitched and more feminine. Suddenly the drum beats stop.

He points to one of the drum beaters and the young man approaches him. “Who’s first?” he asks and the young man beckons to a couple who are standing close by. They approach the man and tell him their troubles. He stops and he ponders on what he’s heard and after a minute or two gives them a solution. The pair thank him and leave.

The next person in line then makes his or her way up to him and it continues well into the night. At the stroke of midnight, the man wraps up proceedings and returns to his normal self and the three drummers head for home. The next morning the man wakes up and goes about his business without giving much thought to the events of the previous day. As far as he is concerned it was just another day in the life of a Tamang shaman.

Copyright © 2017 by Dyarne Ward