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Unformatted text preview: mination below. As the plaintiff is the party asking the court for relief, the initial burden to pro
to the court's satisfaction that a relationship or duty exists between the plaintiff and
defendant, the breach of which has caused some loss which can be quantified in money
terms, and is not so intangible or removed from the central culpable action of the
defendant that the court is swayed to deny the award of money in compensation for the
loss. Each and every material aspect of the plaintiffs case is tested by the defendant, and if any salient point fails to meet the court's requisite standard of proof, the action might
fail. There is a lack of linguistic precision and an absence of a cohesive theoretical
construct in this process. In addition, the common law does not have an effective ability to resolve conflicts where probability enters into the resolution process. As a result, whe
cases arise where 'what would have been' is argued against 'what actually was',
inconsistencies emerge which manifest the shortcomings imposed upon the common law
through a lack of omniscience. This is especially true when considering hypothetical
circumstances and future events, the majority of cases classifying these future-oriented
claims for damages as 'special damages' requiring strict proof of their occurrence. 5 Treitel 1995, pp. 870-873 draws attention to the comments of the House of Lords in deprec 194 D a m a g e s are classed as 'general' or 'special', a distinction that affects the procedural
difficulties in their respective recovery. General damages are presumed recoverable upon
proof of the defendant's culpable act and the resulting loss. Special damages, in contrast,
must be strictly proven, and pleaded specifically, or they are precluded from recovery.
Opportunity costs are normally classified as special damages, or consequential damages,
which suffer from the additional evidentiary hurdle placed upon recovery by the courts,
which explains much of the difficulty in actions seeking recovery of opportunity costs. Damage: Direct or Consequential
Damages in the court's view are either direct, i.e., general damages, or they are indirect,
i.e., 'consequential' or 'special damages'. There are procedural differences in claiming these different types of damages, and the classifications are not static.6 The pleading rule
normally stipulate that general damages need not be pleaded with particularity, but
special or consequential damages must be pleaded specifically.
'General damages', as I understand the term, are such as the law will presume to be the direct
natural or probable consequence of the act complained of. 'Special damages,' o n the other hand,
are such as the law will not infer from the nature of the act. T hey do not follow in ordinary course.
They are exceptional in their character, and, therefore, they must be claimed specially and proved
strictly.7 Although no philosophical reason underlies a stringent differentiation between the two
types, the subtle message underpinning this nominate dichotomy is that the plaintiff will
bear a stricter burden of proof in claiming special damages. Tilbury has stated that "[i]n phrasing in relation to contracts, yet it is used in Australia. This will b e covered in the text below.
Jolowicz 1960, " The Changing Use of Special D a m a g e and Its Effect on the Law",  C L J 214.
Stroms Bruks Aktie Bolag v John & Peter Hutchinson [ 1905] A .C. 5 15 at 525 per Lord Macnaghten. 195 principle, it ought not to give rise to any significant differences in legal consequences",
but in practice the added burden of strictly proving the loss, and not being able to take
advantage of a presumption of recovery, puts the plaintiff at a distinct tactical
disadvantage. Instead of simply proving the breach of contract or tort, and the subsequent injury, the plaintiff must, in addition, strictly prove the additional loss. Opportunity costs
fall within this area of special damage which, given that they then must be proven strictly, places the plaintiff at a disadvantage before the trial of the action begins. If the
opportunity costs were considered as general damages, the plaintiff would be able to take
advantage of their presumptive recovery upon proof of culpable action by the defendant,
and subsequent injury. As damages are increasingly classified conceptually distant from the direct damages
resulting from the defendant's act, they are considered increasingly remote, undergoing a
gradual metamorphosis from falling within the bounds of the first limb of Hadley''s rule,
i.e., general damages, to falling within the bounds of the second limb, or special
damages9. At some point, however, the damages are clearly within either, or neither, of
the limbs of the rule and will be recoverable under a limb of the rule, or not recoverable
at all. The ramifications of the rule in Hadley v Baxendale is considered in detail at the
end of this chapter. Regardless of the classification of the damage, the burden will fall
upon the plaintiff to satisfy the court with pr...
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