Home

Best estimate rule applies to valuation of variations/changes in work done: see 6.Assessment/liability (final paragraph of liability article and Penvidic referred to therein); See also Chapter 6/Liability/Wrongly decided cases/Sabemo 

Owners of the ship Arietta S Livanos v Owners of the ship Anneliese, The Anneliese [1970] 2 All ER 29 - Maritime Conventions Act 1911, s1(1) - 50/50 apportionment where not possible to say which party more blameworthy

Consequential acts/failures to act

Liability for Consequential Acts: An extract from chapter 4 of "The law of damages." This extract considers the legal issues and principles to be applied when a claimant acts or fails to act following a wrongdoer's breach of duty. Keywords: Foreseeability - breaking the chain of causation - intervening acts - novus actus interveniens - duty to mitigate loss - contributory negligence - apportionment of liability

Consequential acts/failure to act - burden of proof (4.4)

The burden is on the wrongdoer to prove that claimant's actions or inactions/failures to act (consequent upon the breach) were, in the circumstances unreasonable: Geest plc v Lansiquot [2002] UKPC 48

Consequential acts/failure to act - duty to mitigate loss (4, part c.)

"Foreseeability and Assessment of Damages."  (Jan 2001). Article discussing the Privy Council case Alcoa Minerals of Jamaica Inc v Herbert Broderick [2000] UKPC 11; [2000] BLR 729. - Damage to building - claimant unable to effect repairs due to financial hardship - rapid inflation and devaluation of currency - duty to mitigate loss - whether financial hardship foreseeable by wrongdoer/date damages to be assessed

Liability - some harm = some compensation - duty to assess damages/best estimate rule (6.1-6.14)

Liability and leading cases: burden and standard of proof; duty of court to assess damages - Chaplin v Hicks/best estimate rule - best estimate rule applies to apportionment of loss/damage - duty to adduce evidence of quantum - best estimate rule applies to concurrent/alternative remedy (illustrated by Penvidic) namely valuation of variations/changes in work done - reference to and/or commentaries on the following cases:

• Chaplin v Hicks [1911] 2 KB 786, CA
• Attorney General v Shimizu Corporation [1996] HKCFI 171
• Palmer v Connecticut Ry & Lighting Co, 311 US 544 (1941)
• Wood v Grand Valley R Co (1915) 22 DLR 614 (Supreme Court of Canada)

• Penvidic Contracting Co. Ltd. v. International Nickel Co. of Canada Ltd (1975). 53 DLR (3d) 748 (Supreme Court of Canada)

• The Commonwealth of Australia v Amann Aviation Pty. Limited (1992) 174 CLR 64 F.C. 91/043 (High Court of Australia)

• Ashcroft v Curtin [1971] 1 WLR 1731; [1971] 3 All ER 1208, CA

• Alger, Brownless & Court Copyservices Limited v Jitesh Thakrar Trading as Thakrar and Co (a firm) [1999] EWCA Civ 574

Apportionment of damage (6.19-6.26) cases (applying same best estimate principle):

• Sheldon v Metro-goldwyn Pictures Corporation, 309 U.S. 390 (1940)

• Thompson and others v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; [1984] 1 All ER 881, QBD

• T J Newbrook and R K Newbrook v T & R Newbrook Limited & Ors [2001] NZCA 332
• Golden Hill Ventures Ltd. v. Kemess Mines Inc., 2002bcsc1460

Liability - nominal damages or best estimate rule? (6.9)

Liability/best estimate rule v. Nominal damages/no recovery cases/an inconsistent line of authority

Liability - wrongly decided cases - best estimate rule not applied

1. Tate & Lyle Food and Distribution Ltd v Greater London Council [1982] 1 WLR 149; [1981] 3 All ER 716, QBD

2. Sabemo (Sa) Pty Ltd V. AIW Engineering Pty Ltd File No. SCGRG 92/36 Judgment No. 3630 Number of pages - 15 Arbitration (1992) 9 BCL 280; [1992] SASC 3630 (24 September 1992), Supreme Court of South Australia

Quantum - standard of proof and the certainty issue - amount of entitlement

Quantum of damages: the standard of proof/degree of certainty of assessment required - measure of damages/amount of claimant's entitlement - evidence and the better evidence rule

Quantum - Evidence of amount/quantum (additional materials)

Options where missing or unreliable (quantum) evidence - use of own (expert) knowledge - inviting further representations/evidence - enquiry as to damages - deferral of assessment (prospective/future loss eg third party claims)

Quantum - Methods of Assessment - Total cost/global method (6.15-6.18)

The total cost/global method of assessing damages and variations (Feb 2001).  This article concerns the US case Amelco Electric v. City of Thousand Oaks (2000), 82 Cal.App.4th 373. - Construction contract - variations/changes - delay and interruption of progress - concurrent remedies (repricing of contract due to abandonment/variation alternatively damages for breach) - total cost/global method of assessment - general principles of damages and assessment with reference to EW, Aus, Can and US cases

Quantum - Apportionment of Damage (6.19-6.26)

Best estimate rule applies: see 6.Assessment/general principles/liability

Owners of the ship Arietta S Livanos v Owners of the ship Anneliese, The Anneliese [1970] 2 All ER 29: see apportionment of liability (chapter 3) above - analogous to situation in which it is not possible to say whether either party caused a greater part of the total/global loss (50/50 approach to apportionment) 

Researching the law of damages using the Internet - an introduction

Newsletter