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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.
(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",  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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