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Unformatted text preview: diated a purchase of a motor vehicle, even though the dealer was able to return it to the suppli without loss,40 yet refused the actual costs of additional housing in a hotel for a shor period, undoubtedly caused by the actions of a solicitor who failed to properly invest
a title to a house.41 All of these cases have been decided according to the court's
understanding of what would 'properly' compensate the plaintiffs in the actions, where 35 Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25.
Koufos v C. Czarnikow Ltd.  1 A. C. 350 House of Lords.
Chaplin v Hicks  2 K.B. 786.
Hotson v East Berkshire Area Health Authority  2 All E.R. 908. It m a y be true that some of the
contradictions in damages awards can be explained by the division between past, past hypothetical, and
future losses assessment which dictates at present h o w the courts in Australia view probability. This is a
recent development which only superficially mitigates this area of conflict in the legal rules. S o m e
additional weight should be given to the factual circumstances where the parties to the litigation are to
blame for inconsistencies where evidence of losses claimed was not sufficient to convince the court to rule
in their favour, despite in hind sight that they were justified in asking for compensation.
Solloway v McLaughlin  A .C. 247.
W.L. Thompson Ltd. v Robinson (Gunmakers) Ltd.  C h 177;  1 All E.R. 154.
Pilkington v Wood  2 All E.R. 810.
36 246 rules of past cases were applied. These cases demonstrate that courts will choose a rule,
not necessarily because the rule has relevance to the facts of a case, but because it has relevance according to the purpose of the present curial inquiry. These factors will assis the court in choosing the applicable rules to apply, and how strictly or widely to interpr
them. The discretionary element in choosing the rule upon which to dispose of a case
can, subsequently, seem contradictory. How the bench characterises the facts presented
will set the parameters of the argument regarding the legal rules to apply. Judges have a
vast array of rules from which to choose, resulting in wide discretion in the disposition an instant case. Judges can follow a precedent, distinguish it, apply or partially apply i or overrule it. Some rather disparate factual situations have been held to have principles
which are similar.42 'Proper compensation', therefore, may be influenced by factors other than the
compensatory principle. Other considerations will undoubtedly enter in, and through the
legal matrix the courts must somehow 'do justice' to the parties in conflict. "The
essential quality which legitimates the courts in these roles is: that they strive to do
justice in the case."43 The ancestral duty of the old English Kings to administer justice which was handed to the courts, still lingers within the system of English law practiced i
Australia. The underlying conflict between the common law rule of restitutio in integrum and the
reality of the inadequacy of many damages awards is still not resolved. It would seem
that the court philosophically compromises by holding, prior to any appraisal of facts in 42 In D.P.P. v Morgan  3 All E.R. 1053 the House of Lords relied on a case of a husb
to justify the conclusion that intention must be proven in a rape case. It m ay be the better view to give
recognition to the efforts of well-paid counsel than to curial logic. 247 given case, that some losses are too remote, while still holding that the rule o f restitutio
in integrum is the goal of the awards of damages. The rule in Hadley, which stipulates the limits of recoverable damages in contract, prior to any factual evaluation in a given
case, is a prime example of the result of transmuting an area formerly reserved for the consideration of the jury as trier of fact, and relegating it to a rule of law in an atte
rationalise the common law into principles. Cooke and Oughton,44 Atiyah,45 and Allen
and Hiscock46 all trace the "common law of contracts" to the law of contract through the
19 century transformation period into 20th century commercial application. The
underlying tension arising from the use of broadly-applied rules to dispose of uniquely- ascertained fact situations in litigation has never been fully resolved by the courts, an
seems apparent that contradictions between case judgments will continue. The cases are
individually constructed from the unique facts which comprise the cause of action. How
the parties (and their respective counsels) characterise the losses claimed may dictate
how the court approaches the disposition of the case and the award of damages. Opportunity cost is clearly an economic concept, but it is not clearly characterised as a
economic loss. Past courts did not view the additional component being sought by the
plaintiff in compensation for the time the defendant has withheld payment as part of
ongoing injury from deprival of a capital sum. Whether or not the interest component
normally awarded comprises an integral part of an ongoing chain of injury inflicted by a
defendant is open to debate. The courts have held a restrictive posture on this issue. Blazey-Ayoub, Conomos, and Doris 1996, p. 1.
Cooke and Oughton 1989, Chapter 4 and...
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