Applicable rules governing damages awards the

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Unformatted text preview: ght is all important, they are numberless, and they shift and change so fast that the start of our list would be obsolete before we reached the middle. Even if w e succeeded, w e would not have a key for law because there would be nothing left for our key to unlock.I3 This work will concentrate only upon the rules which are centrally relevant to the discussion of opportunity cost recovery, comprising the central dominant rules of th common law. Applicable Rules Governing Damages Awards The difference between the categories of 'rules' for the purpose of this research centres on the dichotomy between evidence and law. This was characterised in Chapter Six as burdens which the parties to litigation bear upon themselves, and the burden which the bench bears upon itself to properly apply in the case. An example is where the relevant rule of law dictates, say, that a plaintiff must prove his/her loss on the balance of probabilities, and the rule of evidence is whether or not the plaintiff has actually prove the loss in this case. The first is applied through another rule (stare decisis), and the second is gleaned from the documentation and testimony submitted to the court by the plaintiff. Another example may be the rule that a criminal should not be able to profit from his/her own wrongdoing.14 The rule of evidence in a case being litigated may be reframed into a question that whether a principal heir, who recklessly ran down her wealthy grandfather with a motor vehicle was a criminal and, therefore, precluded from 13 Dworkin, R. 1977, Taking Rights Seriously, London, Duckworth Books, p. 44; Davis, J.L.R., 199 "Interest as Compensation" in Finn, P.D. 1992, Essays on Damages, L aw Book Company, pp. 129-152. 14 Riggs v Palmer (1889) 115 N Y 506,22 N E 188. 239 recovery of the estate through the execution of the will of the grandfather. The factual evidence which would be weighed, for instance, might centre around whether the intention of the heir was such as to commit a crime or not. Thus, the rules of evidence a formed around the facts of each case. The evidence pertaining to these facts are introduced into the courts from the plaintiff and defendant. In contrast, the rules of la are taken in principle from past cases15 and applied to present facts, and the applicatio of these rules, although argued by counsel, is governed by the bench. The evidential hurdles lying in the path of the plaintiff which are to be surmounted if recovery is to t place were covered in the previous chapter. This chapter will focus upon the relevant rules of law, which are promulgated through the courts themselves and which are relevant to the issue of opportunity cost recovery. When courts use imperfect discovery techniques to ascertain facts in novel situations and then balance competing interests in applying 'rules of law' to the facts which are determined, legal contradictions begin to arise. It will be argued that certain contradictions involving principles directly related to recovery of opportunity costs ha been maintained illogically through the application of the legal rules, despite the fact the High Court of Australia has recognised and partially resolved significant aspects of the contradictions in the case of Hungerfords v Walker,xe the subject of Chapter Nine. 15 16 In general, statutory rules are ignored in this dissertation. (1989) 171 C.L.R. 125. 240 Restitutio in I ntegrum The doctrine of restitutio in integrum is the aim of damages awards.17 Translated rather loosely it means a "restoration of the whole". It illustrates that the purpose of the a of damages is to restore the plaintiff, as far as money can do, to the position in whic plaintiff would have been, had the defendant not committed the act or omission, whether in contract or tort, which caused the loss to the plaintiff.18 It is so well entrenched Hungerfords v Walker (1989) the High Court said that it is "the fundamental principle that a plaintiff is entitled to restitutio in integrum^}9 Fifty years earlier, in Liesb 90 Dredger v. S.S. Edison (1933), L ord Wright affirmed "the dominate rule of law is the principle of restitutio in integrum.'" This rule is to dominate all other applicable r damages awards, for "the dominant rule of law is the principle of restitutio in integru 91 a nd subsidiary rules can only be justified if they give effect to that rule." Assuming the plaintiff has proven that a loss has been incurred, and the loss is attrib to the act or omission of the defendant, the central questions subsequently arising to determined through the principle of restitutio in integrum are 'What loss?', and 'What compensation or restoration is to take place?' Thus the concept of restitution deals at heart with the quantification issue. As the concept of remoteness addresses the issue a the kind of damage to be restored, restitution addresses the issue regarding what the measure of damage will be. In Haines v Bendall22 (...
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This note was uploaded on 09/03/2012 for the course LAW 1501 taught by Professor Garva during the Three '12 term at University of Adelaide.

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