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damages [2011/11/14 08:23]
steve
damages [2017/07/30 18:02] (current)
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 ====== Damages ====== ====== Damages ======
-  * Damages are calculated on different basis depending on the claim in suit. +  * Damages are calculated on different basis depending on the breach and the claim in suit. 
-====== Interesting Cases ====== +===== Interesting Cases ===== 
-  * Hadley v Blaxendale (((1854) 9 Exch 341)) +  * [[http://​www.bailii.org/​ew/​cases/​EWHC/​Exch/​1854/​J70.html|Hadley v Blaxendale]] (((1854) 9 Exch 341)) 
-    * first limb+    ​* **first limb**
       * Where two parties have made a contract which one of them has broken,       * Where two parties have made a contract which one of them has broken,
       * the damages which the other party ought to receive in respect of such breach of contract should be       * the damages which the other party ought to receive in respect of such breach of contract should be
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       * or such as may reasonably be supposed to have been in the contemplation of both parties, ​       * or such as may reasonably be supposed to have been in the contemplation of both parties, ​
       * at the time they made the contract, as the probable result of the breach of it.       * at the time they made the contract, as the probable result of the breach of it.
-    * second limb+    ​* **second limb**
       * Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, ​       * Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, ​
       * and thus known to both parties, ​       * and thus known to both parties, ​
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       * and of this advantage it would be very unjust to deprive them arising out of any breach of contract.  ​       * and of this advantage it would be very unjust to deprive them arising out of any breach of contract.  ​
   * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​cth/​FCAFC/​2011/​55.html|Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd]]   * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​cth/​FCAFC/​2011/​55.html|Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd]]
-    * (**administrative staff costs**)+    * **administrative staff costs**
       *   ... we think that his Honour should have allowed the amount claimed in respect of the sales staff over the period of three years which was in the sum of $1,899,731       *   ... we think that his Honour should have allowed the amount claimed in respect of the sales staff over the period of three years which was in the sum of $1,899,731
-    * (**foregone opportunity**)+    * **foregone opportunity**
       * It was incumbent on the [[http://​en.wikipedia.org/​wiki/​Plaintiff|plaintiff]] to establish on the balance of probabilities that it had lost a valuable opportunity. ​       * It was incumbent on the [[http://​en.wikipedia.org/​wiki/​Plaintiff|plaintiff]] to establish on the balance of probabilities that it had lost a valuable opportunity. ​
       * If the [[http://​en.wikipedia.org/​wiki/​Plaintiff|plaintiff]] satisfied the burden of proof it bore on this issue, the Court could proceed to value that opportunity in accordance with the degree of likelihood that the opportunity would have ensued to [[http://​en.wikipedia.org/​wiki/​Plaintiff|plaintiff]]'​s pecuniary gain.        * If the [[http://​en.wikipedia.org/​wiki/​Plaintiff|plaintiff]] satisfied the burden of proof it bore on this issue, the Court could proceed to value that opportunity in accordance with the degree of likelihood that the opportunity would have ensued to [[http://​en.wikipedia.org/​wiki/​Plaintiff|plaintiff]]'​s pecuniary gain. 
       * In [[http://​www.austlii.edu.au/​au/​cases/​cth/​high_ct/​179clr332.html|Sellars v Adelaide Petroleum NL]] the High Court analysed the authorities at length, emphasising the distinction between causation of loss (which must be determined in accordance with the general civil standard of proof) and the assessment of the plaintiff’s loss “taking into account any reductions arising from the uncertainty of future events"​       * In [[http://​www.austlii.edu.au/​au/​cases/​cth/​high_ct/​179clr332.html|Sellars v Adelaide Petroleum NL]] the High Court analysed the authorities at length, emphasising the distinction between causation of loss (which must be determined in accordance with the general civil standard of proof) and the assessment of the plaintiff’s loss “taking into account any reductions arising from the uncertainty of future events"​
 +  * [[http://​www.austlii.edu.au/​cgi-bin/​sinodisp/​au/​cases/​nsw/​NSWCA/​2014/​184.html|Mainteck Services Pty Ltd v Stein Heurtey SA]](([2014] NSWCA 184))
 +    * **Global claim for delay and disruption**
 +      * No special principles of fact or law apply to contractual claims relating to building and construction. Where there is a significant cause of loss not attributable to the defendant a global claim will fail. Any apportionment of damages must have an evidentiary basis [182]-[206].
 +      * John Holland Construction & Engineering Pty Ltd v Kvaerner RJ Brown Pty Ltd(1996) 8 VR 681, applied
 +      * Laing Management (Scotland) Ltd v John Doyle Construction Ltd [2004] BLR 295; 2004 SC 713, disapproved
 +      * Irene Henderson Ltd v Eddie Mair Ltd [2012] CSOH 66; Musselburgh And Fisherrow Co-Operative Society Ltd v Mowlem Scotland Ltd (No 2) [2006] CSOH 39; Lichter v Mellon-Stuart Company [1962] USCA3 173; 305 F 2d 216 (1962); Astley v Austrust [1999] HCA 6; 197 CLR 1; Pilmer v Duke Group (in liq) [2001] HCA 31; 207 CLR 165, considered.

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