The second limb encompasses an area where the

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Unformatted text preview: racy.103 At the very heart of the continuing confusion, however, is the imputation of a presumption of knowledge on one hand (first limb) and the imputation of actual knowledge on the other hand (second limb). The first limb encompasses an area where, leaving apart other mitigating circumstances, the defendant cannot escape the extraction of the plaintiffs loss by the court by claiming no prior knowledge. The second limb encompasses an area where the plaintiff cannot escape the loss without proving that actual, implied or constructive notice is given to the defendant such that the plaintiff justified in calling for the sanction of the courts. The first limb implies a search by th court to the wider social construction around the contract. The second limb looks at the terms of the contract and behaviour of the contractors in determining the 'contemplation' of the parties involved with respect to special circumstances. The environment and normal practice portrayed by such evidence as the class of actors of which the parties are part, rises to importance in the first limb, and the specific terms of the contract, prior 103 Victoria Laundry (Windsor) Ltd. v Newman Industries Ltd. [1949] 2 K .B. 528 per Asquith J. at 540. 233 dealings, a nd the imputed, constructive, and actual notices given willrisein importance in the second limb. Summary This chapter has covered in detail the issues of causation, remoteness of damage, and mitigation regarding the burden placed upon the plaintiff to prove that a defendant should be burdened with a claimed loss. These issues are examined in their relationship to opportunity cost recovery. The interaction of all the issues in a single trial batt it difficult to specifically delineate the weight which might be given to any single consideration. The weight which the court gives to any or all of them will be specifica determined by the evidence provided in each case. The evidence, of course, will determine the facts of each case which the court will accept as the true account of eve The next chapter will examine rules of a different nature. These are 'rules of law' whi in relevant respects have different qualities which affect recovery of damages, and specifically opportunity cost as damages. The sections above clearly show that despite a clearly defensible theoretical position opportunity cost inflicted by a recalcitrant defendant is a real loss, it is not instan recoverable by a plaintiff despite its actual occurrence. The methodology of law dictat that each and every aspect of the plaintiffs case be proven to a requisite standard. If plaintiff cannot gather acceptable satisfactory evidence to meet the standards set by t court to invoke State sanction against a defendant, the action will fail and the plaint simply will have no remedy. The burden, therefore, falls upon a plaintiff to schematica communicate to the court the facts of the case, using a specie of proxy, i.e. documenta and testimonial evidence, that an unavoidable opportunity cost has been caused by the 234 defendant, the loss is not too remote, a nd that the loss is not so hypothetically intangible that it is irrecoverable. Meeting these criteria, a plaintiff will find support from the c system in the recovery of opportunity costs. This is subject to rules other than those above. There is a genre of rules which come from the law itself, which limit or otherwise dictate the parameters of damages awards. 235 C HAPTER S EVEN: L EGAL RULES IN DECIDING DAMAGES Introduction The previous chapter examined the problems arising in the common law courts when dealing with the burden of providing satisfactory evidence which prove the facts of e case. Causation, remoteness of damages, and mitigation were examined, all of which relate to the amount and nature of evidence put before the courts by the parties to litigation. The rules considered in the previous chapter are rules of law in every se and the division between evidence and law for purposes of analysis may not be a philosophically accurate approach in delineating the contradictions attached to recov of opportunity costs. Nevertheless, the classification of the rules used in courts mu semiotic content in order for discussion to proceed, requiring a defensible systemic cardinal organization. This organisation and content is found within the evidence ver law paradigm. As the previous chapter examined the 'rules of evidence', this chapter analyses conflicts in the treatment of damages awards which arise from the applicatio 'rules of law' by the courts. The examination will begin with comments about rules in general and the rules versus standards debate. A section will follow which will focus on the rule that damages are considered to be restitutionary. The chapter will then examine the problems which res from converting all damages awards to a money metric, the past refusal of courts to recognise the nature of damages awards as economic loss and interest as damages, and the once-for-all-time payment of damages rule. The chapter concludes that precedent- 236 b ased rules of law were seminal in propagating curial resistance to economic theory. Although, as the next chapter will show, changing social expectatio...
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