The line to be drawn by the court however even if it

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Unformatted text preview: rts must find an answer which is logically justifiable. The requirement that courts must find an answer was first challenged in the 1911 case of Chaplin v Hicks52 where the English Court of Appeal held that just because the loss was difficult to estimate in money, and was uncertain, the court (or in that case, at first instance, the ju was to do its best to estimate the damage and reward according to the estimation. It was, in fact, not to be taken away from the jury. i0 (1981) 145 C.L.R. 625. (1981) 145 C.L.R. 6 25, online http://www.austlii.edu.au/au/cases/cth/high ct/145C.L.R.625.html at para. 23. 52 [1911] 2 K .B. 786 at 795 per Fletcher-Moulton LJ, at 798-9 per Farwell LJ. 53 [ 1911]2K.B. 7 86 at 800. 51 286 T he court, therefore, cannot use the social imperative of predictability as a tool to avoid dealing with difficult financial or economic issues, whether they contain attributes of speculation, or not. The line to be drawn by the court, however, even if it contains some speculation, will certainly not encompass a purely speculative position. In Seguna & Seguna v Road Transport Authority of New South Wales,54 (1995) the court rejected the plaintiffs assertions that they had sustained an opportunity loss attached to a diminished property value resulting from acts of the Road Transport Authority and subsequent investment losses in a portfolio. The plaintiffs, Seguna, had claimed that if the property in question had not lost value through the actions of the RTA, then the plaintiffs would have been able to borrow more against the property, increasing their investments, yielding an overall higher return. Talbot J. rejected the plaintiffs' claim, noting that t plaintiffs had not actually had the claimed funds in an investment, and that they had speculated that the lost value of the property would have theoretically meant that they were precluded from borrowing more against their property, making additional investment funds unavailable. His Honour commented that the plaintiffs had shown no evidence that they actually intended to borrow extra funds, that the investment strategy of the plaintiffs "was devised by [the plaintiffs advisor] only for the purpose of giving support to the claim [for opportunity cost]," and that "[f]he Court is being asked therefor to make presumptions not only as to the return on investments but what the investments might have been."55 This reveals that the policy of predictability dictates that courts prefer actual expenditure rather than theoretical cost. 54 Raymond Joseph Seguna Ailsa Louise Seguna v Roads and Traffic Authority of New South Wales [1995] N S W L E C 147, (12 September 1995), (unreported), N e w South Wales Land and Environment Court, Talbot J. 55 [1995] N S W L E C 147 at p. 8. 56 See Federal Commissioner of Taxation v Western Suburbs Cinemas Limited [1952] 86 C.L.R. 102, where the High Court of Australia openly expressed this preference. 287 T he courts m a y be willing to concede that the conceptual issues are difficult to delineate in a way that clearly shows distinct limits in principle, but that does not mean that courts will attempt to find a way for processes of estimation to be conceptually defined. In JLW (Vic.) Pty. Ltd. v Tsilogolou51 (1994), Brooking J. expressed the view that there is no rigid line dividing cases where guess work is permissible and cases in which it is not. The border line was certainly indistinct, but the plaintiff in that case had failed to call credible evidence to show how the courts could ascertain the quantum for loss of stock stolen from a shop, producing neither a list of what was lost, nor other credible evidence of quantum. Brooking J. held against the plaintiff, despite his opinion that the loss had certainly incurred. Although some sympathy can be generated toward the courts in recognition of the difficulties of assessing evidence pertaining to intangible losses, the refusal to undertake a reasoned approach to the intangible, but rationally defensible, aspects of plaintiffs' claims has resulted in plaintiffs bearing all risk of future changes in most cases, with CO defendants escaping the true social cost of culpable actions. L untz objects, holding that this criticism is unjustified, pointing out that it is rare for defendants to bear any loss all in a modern insured world and that the loss will be born anyway by society through increased insurance premiums or a social security net which provides for those whose awards are inadequate for their long term support.59 It is not clear why this should be relevant to the consideration that the plaintiff suffers an injustice through damages >7 (1994)1 V R237. A contrary argument can be mounted where future losses are awarded in a probabilistic decision model. This was considered in Chapter Seven, and will be considered below under the section which examines the public policy of accuracy. * Luntz, 2002, pp. 9-10. 58 288 a wards diminished through reference to a policy of predictability, but the point is not lost that modern social circumstan...
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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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