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  NSWCA 383 at 
|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)
|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 |
|No||Common law: yes, ‘contumelious disregard’
CLA – not for personal injury (s21)
|No||No: compensatory not punitive|