Malone does not consider the courts inherent attitude

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: tes of the common law were shown in Chapter Five to possess characteristics which inhibit the pace of change in principle. The High Court itself, seven years prior to issuing a "blanket rate" in Pennant Hills, had criticised the Supreme Court of New South Wales for prescribing an interest rate to be followed by trial judges.89 In the context of inflationary considerations, M alone defines three underlying considerations which affect the way courts deal with damages awards: predictability, efficiency, and accuracy. Malone does not consider the court's inherent attitude of conservatism, nor the source of the ability to employ individual public policy perspectives by the judiciary in the courts. The impact of these underlying social expectations will be examined in the next chapter, which will focus on the social polici employed by the courts in determining damage awards. 88 Sharman v Evans (1977) 138 C.L.R. 5 63 at 588; Hawkins v Lindley (1974) 4 A.L.R. 6 97, at 699; Todorvic v Waller (1981) 150 C.L.R. 4 02; Pennant Hills Restaurant v Barrett Insurances Pty. Ltd. (1981) 145 C.L.R. 6 25. In 1979, K ing CJ of the South Australian Supreme Court stated that "judicial notice can be taken of "general economic trends, the effects of inflation, prevailing rates of interest and returns on investment". Rendett v Paul (1979) 2 2 S.A.S.R. 4 59 at 465-6, also cited with approval in Woods v MultiSport Holdings Pty Ltd [2002] H C A 9 (7 March, 2002) (unreported) M c H u g h , Kirby, Hayne and Callinan JJ. A notable exception to judicial resistance to economic theory is manifest in the dissenting judgment of Stephen J. in Todorovic w here the text reads as clearly and logically can be said in defence of a reconciliation between what the plaintiff has lost and the real effects of pitiful damages awards modified by indefensible interest and discount rates. T he judgment is so strong in its logic and manifest legitimacy that the House of Lords, in the 1999 case of Wells v Wells ([1999] 1 A.C. 345 at 364 et seq.) said that the approach to a lump sum payment has never been explained better than the text of the j udgment of Stephen J. See Luntz and H ambly 2 002, pp. 570-577. 89 Hawkins v Lindsley (1974) 4 A.L.R. 6 97. It m a y be that the judicial attribution of credibility to economic theory progressed concurrently in the U S A , Canada, and Australia, for within one decade of Hawkins, Luntz points out, both the Supreme Courts of C anada, and the U S A held similar views to the criticism expressed in Hawkins v Lindsley. Luntz 2 002, p. 406. 90 M alone, T. E. 1979, "Considering Inflation in Calculating Lost Future Earnings", Washburn Law Journal, vol. 18, (1979) pp. 499-511 at 500. M aking this assumption reflects the courts taking a position which can be construed to be the most favourable to the plaintiff, and m a y also reflect, in addition to a judicial conservatism, a paternalistic attitude toward the victim of wrongdoing. 265 Summary Damages are considered a money compensation for a loss incurred. This is plainly evident from the rule that damages are restitutionary. A plaintiff is entitled, as examin above, to be restored as far as money can do, to the place or position which was occupied prior to the wrongful act of the defendant. Whether in tort or contract, a plaintiff who suffers loss from the culpable acts of the defendant is entitled under the restitutionary rule to have those losses completely restored. The examination revealed, in contrast to this statement, that the common law interjects hurdles which prevent the complete restoration from taking place. These further hurdles have all related to difficulties confronting the courts who cannot have perfect knowledge. Courts do not have perfect knowledge of the events leading to the loss, courts do not have perfect knowledge regarding the hypothetical position the plaintiff would occupy at the time of trial, and courts do not have perfect knowledge regarding the future circumstances which will affect the position plaintiffs will occupy in the future. It may be fairly said that a multiplicity of problems arise contrary to the rule of resti in integrum from another rule, that of the once-for-all-time payment rule. Perhaps the difficulties arising from the analysis in this chapter can be properly, if not convenient characterised as the problem of geochronological removal of common law adjudicators from the factual events giving rise to litigation. This may be accurate, although it does not address other conflicts which arise in the examination of common law damages awards. Other difficulties arise where, in recognition of the human limitations of judges, individual perspectives are brought into the methods employed by judges when approaching common law damages awards. Accordingly, the next chapter will examine the central principles, labelled as 'social policies', or 'public policies', which influen 266 judges w h e n approaching difficult questions relating to damages awards. Specifically addressing inflation, the next chapter will show that judicial resistance to the recogn of opportunity costs awar...
View Full Document

Ask a homework question - tutors are online