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 |
the blue bag 