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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.
 2 K .B. 786 at 795 per Fletcher-Moulton LJ, at 798-9 per Farwell LJ.
[ 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
 N S W L E C 147, (12 September 1995), (unreported), N e w South Wales Land and Environment
Court, Talbot J.
 N S W L E C 147 at p. 8.
See Federal Commissioner of Taxation v Western Suburbs Cinemas Limited  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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