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Unformatted text preview: s the v iew that it is the seeking o f applicable rules that prevents compensation from being more perfect. He points out that "rough and ready" justice is all that a plaintiff can expect. This assertion may be well-taken in borderline cases where t
evidence is such that the inquiry would be so catastrophically tedious that the court
cannot possibly allot time to pursue issues, but appears to take a utilitarian/pragmatic
approach which in principle might not be defensible. In addition, it may breed
uncertainty in the application of the law, contrary to underlying social expectations,
examined in Chapter Eight. It is conceded, however, that this criticism may be somewhat
idealistic, given the difficulties which face modern courts in areas of increasingly
technical evidence. For Waddams, the costs of tedious inquiry far outweigh the injustice
in what he infers may be isolated cases. His priority is, therefore, weighted toward
efficiency in the court process at the cost of tedious pursuit to achieve accuracy in
damages awards. "[T]hough perfect restitution is [the] ultimate aim and end [of the law
of damages], yet it is not the sole consideration: a working system of law must always pay attention to the cost of the process to the parties, to the court, and to the communi
at large."31 The compensatory principle dictates that a plaintiff who has suffered from the act or omission of a defendant at least has a prima facie right of restoration of that position
process of ascertaining what restoration is to take place forms the heart of the common law process of awarding damages. It is not difficult to state that a plaintiff is entitl restoration to a previous position, it is another thing to consistently restore plaintif
previous positions in a just and rational manner. To put it another way, the court may 30 Waddams, S. M . 1992, "The Principles of Compensation" in Finn, P.D. (ed), 1992, Essays on Damages,
L aw Book Company, pp. 1-13.
W addams 1992, p. 13. 244 look at the restoration in different w ays, and apply widespread discretion, with the
answers to legal questions which are handed down by judges in case judgments seldom
manifestly pleasing all parties involved in the litigation. There is support for the proposition that there is imported into every case an underly tension, when a rule of law which is essentially a legal hereditary order of governanc providing simultaneously both a virtuous goal and a benchmark for judgment, is applied to facts, unique within themselves, where the court must decide for one party or anoth
"^9 with imperfect evidence. In other w ords, a general rule is applied to unique facts. T he
problem is more acute when it is remembered that an assessment of 'value' routinely involves a high degree of subjectivity. The potential for individual preferences to en
into the judgment is enormous. There are not many areas of law more prominent in this regard than the area of damages. Legal contradictions and inconsistent rulings can eas
be found in the cases. As already noted, in Liesbosch Dredger v S.S. Edison'2' (1933),
court took the view that the compensation to the plaintiff owners of a dredge, lost
through the defendant's negligence, should be that of the value of the lost dredge to
owners in the particular circumstances as a going concern. Other considerations
regarding the contractual situation of the owners in the employment of the dredge and subsequent lost profit were considered unrecoverable. In contrast, the court went to g pains to ascertain the lost profits of a plaintiff in a breach of copyright action, ev to the accounting method used to account for overheads to ascertain the surplus capaci of one of the firms in LED Builders v Eagle Homes314 (1999). In the former case the cou
was not interested in the contractual situation of the plaintiff as it was considered Simpson 1987b, p. 360.
Owners of the Dredger Liesbosch v Owners of Steamship Edison  A.C. 449.
LED Builders Pty. Ltd. v Eagle Homes Pty Ltd. (unreported)  FCA 584. 245 remote in relation to the d amages claimed, but in the latter case the court w as interested in the contractual situation of the defendant, because it considered that it was not to
remote in relation to the damages claimed. The Court refused to award the market value
of the coal improperly taken from the plaintiffs land in Livingstone v Rawyards Coal Co.35 (1880), yet it awarded the difference in market value of sugar which was delivered
late in a falling market in Koufos v C. Czarnikow Ltd. 36 (1969). It awarded a loss of a chance to succeed in a beauty contest in Chaplin v Hicks31 (1911), but refused to award
for the loss of a chance to recover properly where a hospital was charged with the
liability where a physician misdiagnosed an injury in Hotson v East Berkshire Area
Health Authority3* (1987). In other cases the court has assessed the value o f shares at the date they should have b een
transferred, despite the fact they had declined in value from that date to the date of
award; held a gun-maker responsible for substantial damages when he repu...
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