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Unformatted text preview: 1991) the High Court referred to the 17 Owners of the Dredger Leisbosch v Owners of the Steamship Edison  A.C. 449; Burns v M.A
Automotive (Australia) Pty. Ltd. (1986) 161 C.L.R. 653; Wenham v Ella (1972) 127 C.L.R. 454; Butler
Egg & Egg Pulp Marketing Board (1966) 144 C.L.R. 185.
Robinson v Harmon  1 Ex. 850; 154 E.R. 363, Livingstone v The Rawyards Coal Company (188
5 App Cas 25.
 A.C. 449 a 463.
(1991)172C.L.R. 60. 241 issues of true compensation, a nd fair legal measure o f compensation23 w hich has the deceptively simple connotation that the court seeks perfect compensation for the plain
where the acts of the defendant have caused loss. This would also be implied by the
social expectation of accuracy, which informs the content of case awards, which is covered in Chapter Eight. This is questionable at best and the underlying tension betwe
the court seeking a complete inquiry "into the precise circumstances that would have
attended the plaintiff if the wrong had not been done, and on the other hand, a search
rules that are clear, predictable, workable, fair between one claimant and another in similar circumstances, and reasonably inexpensive [in] application",24 illustrates that
common law is in a state of flux and seeks a balance between competing social
expectations of efficiency and accuracy through implementation of rules of law. It is, therefore, fair to the courts to say that approximate compensation is all for w
plaintiff can hope. Indeed "rules as to damages can in the nature of things only be
approximately just."25 Dr. Lushington, in The Columbus, (1849) observed how:
the party receiving the injury is entitled to an indemnity for the same. But although this is the
general principle of law, all courts have found it necessary to adopt certain rules for the
application of it; and it is utterly impossible, in all the various cases that may arise, that the
remedy which the law m a y give should always be to the precise amount of the loss or injury
sustained. In many cases it will, of necessity, exceed, in others fall short of the precise amount.26 This may not be a satisfactory explanation for the shortcomings of the common law, and
it might be more defensible to attribute shortcomings and excesses to limitations such mitigation or remoteness, and/or to issues of evidential proof, rather than to proclaim 23 (1991)172C.L.R. 6 0 at 66.
W addams, S. M . 1992, " The Principles of Compensation" in Finn, P.D. (ed) Essays on Damages, L a w
Book Company, p. 1.
Rodoconachi v Milburn (1886) 18 Q.B.D. 67 at 78 per Lindley J , cited in W a d d a m s 1992, p. 1.
The Columbus (1849) 166 E.R. 922 and 923.
24 242 simply that it is 'impossible' to recompense precisely. T h e better view is that in the proof of injury the Court is a hind-sighted third party and cannot roll back time to view the
events with precision. This results in a lack of omniscience.27 The manifest difficulty ascertaining the truth of the actual loss and the resulting limits of justice in some c
means that the courts simply cannot make a perfect award. This shifts the burden for perfect damages awards back to the parties involved in the litigation who must introduc
enough acceptable evidence for the court to make clear and satisfactory inference regarding the actual losses. According to this premise, it can be said that the award w
be, in its compensatory exactitude, directly related to the breadth of the acceptable
evidence which is presented to the court and upon which it bases judgment, subject of
course, to other mitigating rules of law or policies of the court. Courts struggle to fit new facts into the very rules which they use for judgment. The application of rules taken from past decisions may mask covertly political decisions or changes in underlying social perspectives. Further, the choice of rules to apply may gi
judges a wide range of potential outcomes on a given set of facts. One rule may
predominate28 or a balance may need to be struck. Rules may not be absolutely logical,
9Q but the court will seek to address a n issue b y searching for a n applicable rule. 27 Blazey-Ayoub, P.J. C onomos, J. W . and Doris, J. I. 1996, Concise Evidence Law, Federation Press, p. 2;
McGhee v National Coal Board  3 All E.R. 1008 at 1012 per Lord Wilberforce, w h o indirectly
lamented this point and the impossibility of providing proof of the source of causation of injuries in some
Cardozo, B. J. 1921, The Nature of the Judicial Process, 1970 edition, Yale University Press, p. 41;
Cross, R. and Harris, J. W . 1991, Precedent in English Law, 4th edition, Oxford, Clarendon Press, p. 4.
Hadley v Baxendale  156 E.R. 145, Robinson v Harmon  1 Ex 150; 154 E.R. 363,
Livingstone v Rawyards Coal Co. (1880) 5 A p p Cas 25. In each of these seminal 19th century cases, the
court searched for, and "found", an applicable rule upon which to dispose of the case. 243 Waddams take...
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