How have damages been assessed in a breach of fiduciary duty case?

Those three issues raise the same question in three different forms. There is no cross-appeal. So it is not open to us to consider whether the damages were assessed on a basis that put them too high. Nor is it open to us to decide that not all the defendants are liable for breach of fiduciary duty. The only real issue is whether the damages for failure to disclose a material fact, categorized by the chambers judge, following Jacks v. Davis, as a breach of fiduciary duty, and the damages for an act of fraud on the part of the defendant Treit, were assessed too low because the chambers judge regarded all events following and consequent on the negligent acts of the soils investigator and pile-driving contractor as too remote.

The decision of this court in Jacks v. Davis is indistinguishable from this case on all the relevant points. The damages that should be borne by a solicitor who fails to disclose to his client material facts about the secret profit on a real estate transfer are to be computed in a similar way to damages for fraud, namely, by determining the amount of the overpayment for the land in excess of what it was worth. Additionally, where the transfer would not have occurred if the true facts had been known, the damages should also include all further consequential losses, even if those losses are not such as would reasonably have been foreseeable or as would reasonably have been in the contemplation of the parties, subject only to considerations relating to the plaintiff's own actions in mitigation, to legal remoteness determined by a common sense view of the strength of causation and not by foreseeability, and to such interrelated factors as new intervening acts.

While Jacks v. Davis says that the characterization of the wrong and the approach to damages do not depend on whether the solicitor himself shared in the secret profit that was not disclosed, it is important to note that when the solicitor has shared in the secret profit he must be required to disgorge the profit as part of the damages awarded against him. That disgorgement will introduce an additional element into the calculation of the award, though it will not necessarily change the amount. Whether it does so will depend on whether the amount of the secret profit is equal to the difference in value between what the plaintiff paid and what the land was worth.