Damages easy reference table

It is my experience that when a new brief comes in a lawyer’s natural tendency is to focus on liability rather than what damages actually flow from the relevant breach. Below is a neat little damages reference table I have prepared for a seminar I recently gave. It provides a summary of the kinds of issues to turn one’s mind to and where to seek some guidance.

Ultimately though, damages is a question of fact and the relevant principles only provide guideposts rather than binding rules of law.

Please excuse the formatting. It’s all that WordPress blogging allows.

Contract Tort Aust. Consumer Law Equity
The Standard …had the contract been performed …had the tort not occurred because of’: s236 ACL;

see also Marks v GIO (1998) 196 CLR 494

Discretionary –based on equitable principles
Causation ‘common sense’/ a (not the) cause 5D Civil Liab. Act (NSW) (CLA) 1.‘but for’ & 2.policy etc. ‘whether or not and why’

NB– CLA damages caps

Yes: ‘because of Yes –‘causal link’ b/w losses and breach

Nicholls v Wilson [2012] NSWCA 383 at [172]

Remoteness/foreseeability Hadley v Baxendale

1. Ordinary course

2. D knew the type of damage claimed  would result

‘not far fetched and fanciful’

cf: intentional torts (s3B CLA: Act doesn’t apply)

No N/A
Reliance

 

No No Yes No
Mitigation Plaintiff should act as a ‘reasonable and prudent person’ in mitigating the loss
Pure Economic Loss N/A Perre v Apand (1999) 198 CLR 180: D’s knowledge/P’s vulnerability Yes, not limited by remoteness (as long as causation satisfied) If necessary to properly compensate the plaintiff
Loss of chance/opportunity Court assesses degree of probability and adjusts accordingly: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 Contingencies relevant: Nicholls [181]
Exemplary Damages

 

No Common law: yes, ‘contumelious disregard’

CLA – not for personal injury (s21)

No No: compensatory not punitive
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