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Damages Super Summaries Notes

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This is an extract of our Damages Super Summaries document, which we sell as part of our Contracts 2 Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contracts 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Contracts Super Summaries - Damages Concept

Key Cases

Issue

Principle

Page No./

Ratio

[Para]

Expectatio n Damages

Belgrove v Eldridge

To what extent could Eldridge claim damages in respect of substantial departures from specification

*

The proper principles (except in sale of goods) is rectifying the departure so far as possible

*

647/0
[617]

*

Sometimes this will require removal/demolition as the only practicable method

what is "reasonable necessary" is a question of fact

*

McRae v Commonweal th Disposals

To what extent are damages recoverable

*

Difficulty in assessment does not prevent award but for lost profits only nominal damages would be awarded

*

Breach of contract (rather than non-delivery) gives the plaintiffs a starting point to make a prima facie case, reversing the burden to the CTH to show that the expense incurred would have been wasted even if there was a tanker

Amann Aviation

To what extent are damages recoverable on reliance

*

In cases where a plaintiff has incurred expenditure but it is impossible or difficult to establish the value of any benefits derived from performance the plaintiff can rely on a presumption that they would break even doing what was reasonably necessary for performance

*

The presumption will be rebutted if it is established that the plaintiff would have

765/2
[411]

*

The case was one off breach of contract - it was promised that there was a tanker in the place; in reliance of this the plaintiff expended considerable money; there was no tanker in the place

766/2
[414]

*

The court proceeded to accept certain forms of damage such as travelling expenses, the value of coal and other stores consumed before the ship foundered, wages, office expenses and loss which might have been expected to earn if not devoted to the futile enterprise

*

Amann would have had a very good chance of having the contract reviewed but it is impossible to speculate about the value of the contract if renewed or the value of the equipment if the commonwealth performed

*

648/0
[620]

It doesn't matter that the damages be used to replace the buildings - damages are assessed once and for all

Reliance Damages

647/1
[618]

Replacing the foundations would be a doubtful remedy and thus would not be adequate compensation

647/2
[618-9]

Comments

[Para]

*

It must be a "reasonable course to adopt" -

Page No./

Hence Amann is entitled to the presumption that the value of the benefits would at least be equal to the expenditure incurred in obtaining the contract and performance on its

648/0
[621]
765/4
[412]

767/3-4

It is important to note that what will be recovered is what was reasonable, necessary and wasted

[419]

It is important to note that what will be recovered is what was reasonable, necessary and wasted

Only applicable

Contracts Super Summaries - Damages derived no benefit or that it would have been insufficient to recoup expenditure

o

part subject to one qualification

If the latter is established, recovery will

*

be limited to the extent not established that expenditure would not have recouped

On loss of a chance

*

where money is paid later for a venture

The conclusion of the Full Court that there was a 20% chance of cancellation has to also be factored in - this flows not from performance but from their breach

It will not be rebutted by the fact that the

*

benefit may have included the chance of another remote benefit which is speculation OR if the perceived benefit is only something of value to the plaintiff

The court has to estimate based on what the chances are of a particular thing occurring - in this case it was estimated at 20% hence damages are reduced by 20%

"Where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same position with respect to damages, as if the contract had been performed" - Parke B in Robinson v Harman (1848) 1 Ex 850

Concept

Key Cases

Issue

Principle

Page No./

Ratio

[Para]

Loss of a Chance

Chaplin v Hicks

Page No./

Comments

[Para]

The beauty Queen case and the starting point for all analysis of loss of a chance. Damages were calculated by a jury

The question is one of contingency Howe v Teefy

How should damages be awarded?

*

All that must be answered is the plaintiff had something of monetary value of which he was deprived by the breach

650/1
[306]

*

Here the injury was deprivation of the right to train/race the horse and the profits acquired doing so

*

This is not without value

*

The calculation is not based on how much profit he would have made from the horse but how much his chance of making profit, by

350/2
[307]

There are two steps: 1) Has the plaintiff lost something of value in losing the opportunity on the balance of probabilities?

Contracts Super Summaries - Damages having the use of the horse, was worth in money The Poseidon The false agreement case

Restitution

How should damages be awarded?

*

If damages are recoverable for loss of a chance: Damages are to be 'ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued

*

No-one knows whether or not they would have had an agreement but it was likely

*

2) What is the percentage chance that the plaintiff would have been successful?

The value of that chance is to be ascertained by reference to the degree of probabilities or possibilities

Awarded where the defendant receives payment but doesn't provide performance - these damages are referred to as restitutionary (awarded in cases of total failure of consideration) Where a benefit is conferred, damages can be recovered on the basis of unjust enrichment

Defendants who breach can also benefit in other ways e.g. not performing to the same standard, getting profits when they shouldn't (damages can be awarded on the basis of disgorgement or account of profits where profits are made through conduct not permitted by the contract. But it is generally denied as a head of recovery for breach). These type of benefits based on what the wrongdoer has gained (rather than what the victim has lost) are awarded in equity.

A-G v Blake Can damages be awarded?
"Practical justice" can be used to recover 'ill-gotten gains' in contract - considered and rejected by the Federal Court of Australia in Hospitality Group v Australian Rugby Union Date of Assessme nt

Perez - Solicitor's failure to prosecute case

What is the date of assessment for damages

*

In general, if the breach causes the loss,

*

then the date of assessment is the data of breach

*

But sometimes the party has to look at the party's intention in buying the goods. It should consider

o o

impossible for the respondent to limit the damage caused by the appellant's negligence

*

*
The party's intention in

It is appropriate for the injured party to be protected from the vicissitudes of depreciating currency and the tortfeasor bear the risk of appreciation

The parties ability to mitigate

damages

There is no question of mitigation - it was

Since the personal injury actions would have been converted at an earlier date;

Contracts Super Summaries - Damages buying the good

o

the dates that the personal injury actions WOULD have been converted is used as the date of assessment

Whether circumstances

indicate that the party intends, at some stage, to convert the property into monetary terms (if so the award should reflect the time of intend conversations)

Concept

Key Cases

Issue

Principle

Page No./

Ratio

Page No./

[Para]

Causation and Remotene ss

Alexander v Cambridge Credit

Was CC's loss caused by A's failure to disclose

*

Causation between breach and damage suffered is established by showing that the breach was a cause of the loss

667/5
[358]

[Para]

*

The existence of a company cannot be a cause of trading; except to the extent that the certificates induced the trustees not to take action, the issue was not one jointly necessary to produce the $145m loss

*

*

*

A loss must be such as fairly and reasonably considered as arising naturally according to the usual course of things or such as may be reasonably supposed to have been in the contemplation of the

669/6
[354]

668/2
[359]

Causation - Other cases: Dorset Yacht - ridiculousness of the 'but for' test (Lord Hoffman)

Even if causation was established, the economic conditions (budget, monetary expansion) constituted a novus actus interveniens that so superseded the breach in potency

Was the loss too remote?

Comments

668-9/
[362363]

Stansbie v Troman - Implied term of reasonable care, skill and diligence for an interior decorator will at least extend to a "casual duty" apt to include locking the door to prevent common thieves but not to make the house impregnable

Though some tightening of economic conditions could have been contemplated, what would have been contemplated compared to what actually happened was so different as to be a different kind and it was thus not one on the cards

Remoteness - Other cases:

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