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Unformatted text preview: oof of the loss claimed. This procedural burden will diverge into firstly satisfying the court regarding the causation of the damages, and secondly satisfying the court over the question of the quantum of damages. 8 Tilbury, M . 1990, Civil Remedies, vol. 1, Butterworths, p.37. Recall from Chapter One that the two limbs of the rule in Hadley v Baxendale are the losses which are the "natural, usual course of things" resulting from a breach of the relevant type, and those losses which are in the contemplation of the parties when they made the contract that would result if the relevant breach occurred, are recoverable. All others are too remote to be recoverable. 9 196 If the plaintiff does not adequately address each of these questions in court, the plaintiff will have failed to discharge the burden of proof. Opportunity costs, which can be intangible in nature, place great difficulties upon plaintiffs in meeting both required conditions. The Plaintiff's Burden of Proof If the plaintiff does not discharge the onus of proving damage linked to culpable action, the plaintiff has not proved that a cause of action exists.10 In 1986, in Gates v City Mutual Life Assurance Society Ltd. the plaintiff proved that the defendant had committed a culpable misrepresentation, and that the plaintiff had also suffered a loss, but the court refused to compensate the plaintiff because the actual loss was not sufficiently linked to the actions of the defendant. The plaintiff, therefore, will need to prove damage, or loss, and that it was caused by the defendant. The court might simply assume the causal link depending upon the proof of a breach of duty and an injury which is of the relevant type, but the cases are not consistent on this point. More often arising in cases where an injury is claimed which itself constitutes a loss of a chance of recovery in, say medical negligence cases, or lost commercial opportunity to make a profit, causal assumptions may be more justified in some types of cases than in others, where the difficulty of proving relevant aspects of the plaintiffs case is more acute. This is considered in a separate section below. Whether the loss claimed is related to past events, and therefore Norwest Refrigeration Services Pty. Ltd. and Bain Dawes (W.A.) Pty. Ltd; Geraldton Fisherman' Cooperative Ltd. and Norwest Refrigeration Services Pty. Ltd. [1983-1984] 157 C.L.R. 149; Gates v Cit Mutual Life Assurance Society Ltd. (1986) 160 C.L.R. 1. 11 (1986) 160 C.L.R. 1. The High Court refused compensation on the ground that the misrepresentation of the defendant, that insurance had been effectively secured which rendered the plaintiff indemnified for life if injured and unfit to carry on his trade, was not sufficiently linked to the plaintiffs loss on the footing that no insurance company during the relevant period offered a policy which was comparable to that which was putatively contained in the defendant's misrepresentation. The plaintiff, therefore, would have borne the loss of the subsequent injury in any event. 197 v iewed as rigid, certain, a nd immutable, or whether it is a future loss which is considered flexible, always probability-related, and inherently impossible to prove with certainty, affects the way courts deal with each type of damage. "While the past appears dead, fixed and closed, the future is seen as living, plastic and open. The future appears governed by chance, but there is no chance about the past. A putative past event has either happened or not happened. Consequently, we may feel certain that it rained yesterday while only having in mind the probability of it raining tomorrow." A plaintiff does not get the chance to run a case twice if evidence to prove both the cause of action and the damages is not adduced in the trial at first instance. Retrials are often allowed for error in law, but not for a plaintiffs negligence in failing to produce the evidence needed to convince a court of losses claimed. In Luna Park (NSW) Ltd. v Tramways Advertising Pty. Ltd. (1938) the High Court of Australia ruled that although a breach of contract had been proved, the damage had not been proved and the plaintiff was disallowed from going to trial a second time with additional evidence to prove the damage. Latham C.J. noted that: [t]he evidence which the defendant was content to put before the Court does not make it possible to reach any estimate of damage suffered. I can see no reason why the defendant should be allowed to fight the matter over again. If a party chooses to go to trial with incomplete evidence he must abide the consequences. The fact that his evidence might have been strengthened affords no reason for ordering a new trial. Thus the defendant must be content... with nominal damages. 13 12 Hamer, D. 1999, "Chance Would Be a Fine Thing: Proof of Causation and Quantum in an Unpredictable World", [1999] 23 M.U.L.R. 557 at 562. This perspective was reiterated in Ousley v The Queen (unreported) M96/1996 (7 April 1997) High C...
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