mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1
Outcome: referred to
In The London Corporation [1935] P 70 at 77, Greer LJ, with whom Slesser LJ and Eve J agreed, said: 'Prima facie, the damage occasioned to a vessel is the cost of repairs - the cost of putting the vessel in the same condition as she was in before the collision, and to restore her in the hands of the owners to the same value as she would have had if the damage had never been done; and prima facie, the value of a damaged vessel is less by the cost of repairs than the value it would have if undamaged, though it is true that evidence may establish that the value of the vessel undamaged is exactly the same as her value after she had been damaged.' (see too Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 at 3 per McPherson J, Andrews ACJ agreeing (at 1), 12 per Derrington J; Mackinnon McErlane Booker Pty Ltd v P&amp;O Australia Ltd [1988] VR 534 at 544 per Murphy J, Gray and JH Phillips JJ agreeing; Gardiner v Metcalf [1994] 2 NZLR 8 at 14 per Hardie Boys J; see too McGregor on Damages (17 th edn) [32-003], [32-007].) 73 In Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 at 9, McPherson J (Andrews ACJ agreeing) held that the time, trouble, expense and risks of repair and sale were ordinarily to be borne by a defendant. That principle is also of longstanding in cases in Admiralty. Dr Lushington said in The Gazelle (1844) 2 W. Rob (Adm) 279 at 281; 166 ER 759 at 760 that in cases of collision the suffering party is entitled to indemnification which is co-extensive with the damage, that is, to restitutio in integrum . He continued, in a passage part of which is cited in McGregor on Damages (17 th edn) at [32-006] as authoritative on the common law of assessment of the cost of repair (and see too The Munster (1896) 12 TLR 264 at 265-266 per Jeune P; Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211 ; (2004) 140 FCR 445 at 542 [487] and see too at 542-543 [484]-[488] per Hely J): 'If the settlement of the indemnification be attended with any difficulty (and in those cases difficulties must and will frequently occur), the party in fault must bear the inconvenience. He has no right to fix this inconvenience upon the injured party; and if that party derives incidentally a greater benefit than mere indemnification, it arises only from the impossibility of otherwise effecting such indemnification without exposing him to some loss or burden, which the law will not place upon him.'
Case: Gardiner v Metcalf [1994] 2 NZLR 8
Outcome: followed
In The London Corporation [1935] P 70 at 77, Greer LJ, with whom Slesser LJ and Eve J agreed, said: 'Prima facie, the damage occasioned to a vessel is the cost of repairs - the cost of putting the vessel in the same condition as she was in before the collision, and to restore her in the hands of the owners to the same value as she would have had if the damage had never been done; and prima facie, the value of a damaged vessel is less by the cost of repairs than the value it would have if undamaged, though it is true that evidence may establish that the value of the vessel undamaged is exactly the same as her value after she had been damaged.' (see too Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 at 3 per McPherson J, Andrews ACJ agreeing (at 1), 12 per Derrington J; Mackinnon McErlane Booker Pty Ltd v P&amp;O Australia Ltd [1988] VR 534 at 544 per Murphy J, Gray and JH Phillips JJ agreeing; Gardiner v Metcalf [1994] 2 NZLR 8 at 14 per Hardie Boys J; see too McGregor on Damages (17 th edn) [32-003], [32-007].) 72 Coole P remarked that whatever verbal formulations courts employed '...[i]n truth damages are in the end always a question of fact dependent on the particular circumstances' ( Gardiner v Metcalf [1994] 2 NZLR at 12).
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: referred to
The principle applicable to the right of a shipowner to recover from a wrongdoer the cost of hiring a substitute vessel while its own vessel is being repaired as a result of the tort, was stated by Viscount Sumner in SS Strathfillan v SS Ikala [1929] AC 196 at 205 (Lord Buckmaster agreeing at 205 and Lord Warrington of Clyffe gave a concurring speech at 211-212: see too per Scrutton LJ in The York [1929] P 178 at 184; The Yorkshireman (1827) 2 Hagg Adm 30n; 166 ER 155; cp: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 240-241 [1062] -1067] per Finn J; Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292 at 300-302, 306, 313) thus: 'If... the [plaintiff's] case is to be that the delay upset the general current of their trade, which had to be maintained in spite of it, I think that the extent and cost of this upset must be proved and must be causally connected with the collision in accordance with the ordinary rules of law as to damage. A ship's day is not like a unit of currency, always good for so many shillings. It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work, which she would otherwise have done during the time, went undone to his measurable loss or was only done by resorting to other expedients at a measurable outlay.'
Case: Hadley v Baxendale (1854) 9 Ex 341
Outcome: referred to
In assessing damages for breach of contract the Court seeks to place the party who sustains a loss by reason of the breach in a position, so far as money can do it, which is the same as if the contract had been performed: Robinson v Harman (1848) 1 Ex 850 at 855 [154 ER 363 at 365]; Burns v M.A.N. Automotive (Aust) Pty Limited [1986] HCA 81 ; (1986) 161 CLR 653 at 658, 667, 672-673. Wilson, Deane and Dawson JJ explained that this general principle is limited by a rule laid down by the Court of Exchequor in Hadley v Baxendale (1854) 9 Ex 341 at 354 [156 ER 145 at 151] (161 CLR at 667). That rule held that the damages recoverable from a breach of contract were such as might fairly and reasonably be considered either arising naturally, that is, according to the usual course of things, from such a breach of contract itself, as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Their Honours went on to say that these principles had been discussed by Gibbs J in Wenham v Ella [1972] HCA 43 ; (1972) 127 CLR 454 at 471-472 where he approved the following exposition of Lord Reid ( Czarnikow Ltd v Koufos [1967] UKHL 4 ; [1969] 1 AC 350 at 385): 'The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realized that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.'
Case: Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60
Outcome: followed
The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as it would have been in if the tort had not been committed or the contract had been performed: Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey and Gaudron JJ. As their Honours noted, compensation is the cardinal principle and the 'universal' rule is that a plaintiff cannot recover more than it has lost (172 CLR at 63). 65 I find that when the prepurchase survey contract was made it was in the contemplation of the parties, and of a reasonable person in the position of J-Mac, that Consort would be likely to suffer loss if the survey results were reported negligently. Consort's loss would be that it had purchased the vessel at a price that was far greater than its true value or alternatively would have to pay for the cost of repair and restoration so that it would be brought to a condition conformable with that in the advice given by J-Mac. And, I find that a reasonable person in the position of J-Mac would have realized that Consort would be likely to be exposed to such losses either directly, were it to acquire ownership of the vessel itself, or indirectly by causing the vessel to be acquired by a wholly owned subsidiary using Consort's financial support or resources to make the purchase.
Case: Hebridean Coast [1961] AC 545
Outcome: followed
In the Hebridean Coast [1961] AC 545 at 576-578, Lord Reid applied there principles to a case where a government corporation claimed damages for the detention of a nonprofitearning vessel while she was being repaired. His Lordship distinguished this from the case of a profit-earning ship where the plaintiff had to prove '... the probability that she would have earned so much money if her owner could have used her' ([1961] AC at 577). With a nonprofit-earning ship, if no harm were proved apart from the mere fact that the owner is deprived of her services during the period of repairs, the Court awards damages based on interest and depreciation on the value of the ship ([1961] AC at 578 per Lord Reid, 580 per Lords Morton of Henryton and Tucker, 583 per Lord Morris of Borth-y-Gest; The Greta Holme [1897] AC 596). In Admiralty Commissioners v SS Susquehanna [1926] AC 655 at 664, Lord Sumner said that in such an assessment 'the practice of treating the injured ship, by a sort of personification, as a separate claimant is too inveterate to be disturbed now.'
Case: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640
Outcome: applied
In tort, the measure of damages is that sum which would be sufficient to place the innocent party in the position it would have had had the tort not been committed. Frequently, in a case like the present where there is no contractual expectation loss ( Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 12) courts take a similar approach to determining the loss or damage as I have just taken on the contractual measure which is appropriate in this case, namely the difference between the price and the true value: see Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282. However, that measure of damages is treated by the courts as a flexible rule of practice, which may not be appropriate to the quantification of damage in each case ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at 656-658 [35] - [37] ). 96 The ultimate award, including interest, could, of course, be discounted back to reflect it as at 29 July 1999 when loss was incurred on completion of the purchase. I am of opinion that such a method would accurately reflect the damage, excluding interest, suffered by the purchaser. But, since I have evidence of the actual incurring of expenses and the appropriate quantum of interest to be awarded, it is sufficient to make the award as I propose ( HTW Valuers (Central Qld) Pty Ltd v Astoland [2004] HCA 54 ; (2004) 217 CLR 640 at 658-659 [38] - [40] , [47]). Doing the best I can, I find that such an award provides a just measure of compensation. 105 Upon purchase, Rho Beta 7 acquired an immediate right to sue J-Mac for the whole of those damages because the vessel at that time needed the repairs and restoration work to be done. There was no hidden contingency of the kind found in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at 401-402 [26] where someone else's discretion might in the future be exercised to change the purchaser's position. The damage to the vessel was not hidden and the need to repair and restore it was ineluctable ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at 655 [30] ). Rho Beta 7 had been induced by J-Mac's negligence and misleading conduct, to pay the purchase price to the French vendor. And, when in early 2001 Consort chose to become the legal and beneficial owner of the Gazelle Coast , it knew the vessel's true value and accurately its then state of repair.
Case: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388
Outcome: applied
Immediately upon entry into the contract of purchase, Consort was exposed to a risk of loss. But risk of loss is not a category of loss ( Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at 405-406 [37] ). By entering the purchase contract which permitted Consort to nominate the buyer, Consort did not then suffer damage. Damage would be suffered by whomever was the buyer i.e. Consort or its nominee, in the event Rho Beta 7 on completion, when the purchase price was paid. 105 Upon purchase, Rho Beta 7 acquired an immediate right to sue J-Mac for the whole of those damages because the vessel at that time needed the repairs and restoration work to be done. There was no hidden contingency of the kind found in Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 at 401-402 [26] where someone else's discretion might in the future be exercised to change the purchaser's position. The damage to the vessel was not hidden and the need to repair and restore it was ineluctable ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at 655 [30] ). Rho Beta 7 had been induced by J-Mac's negligence and misleading conduct, to pay the purchase price to the French vendor. And, when in early 2001 Consort chose to become the legal and beneficial owner of the Gazelle Coast , it knew the vessel's true value and accurately its then state of repair.
Case: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282
Outcome: applied
In tort, the measure of damages is that sum which would be sufficient to place the innocent party in the position it would have had had the tort not been committed. Frequently, in a case like the present where there is no contractual expectation loss ( Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3 ; (1986) 160 CLR 1 at 12) courts take a similar approach to determining the loss or damage as I have just taken on the contractual measure which is appropriate in this case, namely the difference between the price and the true value: see Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282. However, that measure of damages is treated by the courts as a flexible rule of practice, which may not be appropriate to the quantification of damage in each case ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at 656-658 [35] - [37] ). 92 Consort claims damages on two alternate bases. First, it says that the total amount claimed is the equivalent of the damage suffered at the time of purchase, being the difference between the price and the true value of the Gazelle Coast ( Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282). Thus, it seeks interest on that sum from 29 July 1999. Secondly, Consort says that the amounts are claimed as damages being the expense to which it has been put in restoring the Gazelle Coast to the condition she ought to have been in had she been as J-Mac's survey report had represented. 93 The problem with the first basis is that it uses the actual costs of repair and restoration work, together with charter hire incurred at various times over the five years succeeding the purchase. No evidence has been given that repair costs remained constant in that period. And the evidence shows that charter rates were different: in mid 2000 they were USD 4600 per day while in late 2003, when the CEC Light was fixed, they were USD 5000. There is no evidence of the rates at July 1999. Nor has Consort given evidence of the net present value at July 1999 of the damages claimed. 94 If Consort were to receive an award calculated on the first basis, it would be likely to achieve more than the true measure of its loss if interest were then awarded from July 1999. Charter rates were different and the market for those rates varies over time. Mr Dowell identified an average fixing rate in the June quarter of 2000 at USD 4130, albeit that he deemed USD 4600 as a realistic rate for a replacement ship.
Case: SS Strathfillan v SS Ikala [1929] AC 196
Outcome: applied
The principle applicable to the right of a shipowner to recover from a wrongdoer the cost of hiring a substitute vessel while its own vessel is being repaired as a result of the tort, was stated by Viscount Sumner in SS Strathfillan v SS Ikala [1929] AC 196 at 205 (Lord Buckmaster agreeing at 205 and Lord Warrington of Clyffe gave a concurring speech at 211-212: see too per Scrutton LJ in The York [1929] P 178 at 184; The Yorkshireman (1827) 2 Hagg Adm 30n; 166 ER 155; cp: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 240-241 [1062] -1067] per Finn J; Carslogie Steamship Co Ltd v Royal Norwegian Government [1951] UKHL 4 ; [1952] AC 292 at 300-302, 306, 313) thus: 'If... the [plaintiff's] case is to be that the delay upset the general current of their trade, which had to be maintained in spite of it, I think that the extent and cost of this upset must be proved and must be causally connected with the collision in accordance with the ordinary rules of law as to damage. A ship's day is not like a unit of currency, always good for so many shillings. It has to be proved that, in doing the shipowner the wrong of laying his ship idle at the time in question, work, which she would otherwise have done during the time, went undone to his measurable loss or was only done by resorting to other expedients at a measurable outlay.'
Case: The Gazelle (1844) 2 W. Rob (Adm) 279 at 281
Outcome: applied
In Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 at 9, McPherson J (Andrews ACJ agreeing) held that the time, trouble, expense and risks of repair and sale were ordinarily to be borne by a defendant. That principle is also of longstanding in cases in Admiralty. Dr Lushington said in The Gazelle (1844) 2 W. Rob (Adm) 279 at 281; 166 ER 759 at 760 that in cases of collision the suffering party is entitled to indemnification which is co-extensive with the damage, that is, to restitutio in integrum . He continued, in a passage part of which is cited in McGregor on Damages (17 th edn) at [32-006] as authoritative on the common law of assessment of the cost of repair (and see too The Munster (1896) 12 TLR 264 at 265-266 per Jeune P; Port Kembla Coal Terminal Ltd v Braverus Maritime Inc [2004] FCA 1211 ; (2004) 140 FCR 445 at 542 [487] and see too at 542-543 [484]-[488] per Hely J): 'If the settlement of the indemnification be attended with any difficulty (and in those cases difficulties must and will frequently occur), the party in fault must bear the inconvenience. He has no right to fix this inconvenience upon the injured party; and if that party derives incidentally a greater benefit than mere indemnification, it arises only from the impossibility of otherwise effecting such indemnification without exposing him to some loss or burden, which the law will not place upon him.'
Case: The Greta Holme [1897] AC 596
Outcome: followed
In the Hebridean Coast [1961] AC 545 at 576-578, Lord Reid applied there principles to a case where a government corporation claimed damages for the detention of a nonprofitearning vessel while she was being repaired. His Lordship distinguished this from the case of a profit-earning ship where the plaintiff had to prove '... the probability that she would have earned so much money if her owner could have used her' ([1961] AC at 577). With a nonprofit-earning ship, if no harm were proved apart from the mere fact that the owner is deprived of her services during the period of repairs, the Court awards damages based on interest and depreciation on the value of the ship ([1961] AC at 578 per Lord Reid, 580 per Lords Morton of Henryton and Tucker, 583 per Lord Morris of Borth-y-Gest; The Greta Holme [1897] AC 596). In Admiralty Commissioners v SS Susquehanna [1926] AC 655 at 664, Lord Sumner said that in such an assessment 'the practice of treating the injured ship, by a sort of personification, as a separate claimant is too inveterate to be disturbed now.' 88 And in Anthanasopoulos v Moseley [2001] NSWCA 266 ; (2001) 52 NSWLR 262 the Court of Appeal of the Supreme Court of New South Wales allowed car owners (or their insurer) who were deprived of the use of their vehicles to recover the cost of hire of a substitute vehicle while theirs underwent repair even though they were not out of pocket for that hire. That Court applied The Greta Holme [1897] AC 596 on the basis that injury to non income producing property which deprives a party of the use of the property is compensable and held that the claim was for general, not special damages (see 52 NSWLR at 276 [76] per Ipp A-JA; see too at 273 [54], 274 [58] per Beazley JA).
Case: The London Corporation [1935] P 70
Outcome: followed
In The London Corporation [1935] P 70 at 77, Greer LJ, with whom Slesser LJ and Eve J agreed, said: 'Prima facie, the damage occasioned to a vessel is the cost of repairs - the cost of putting the vessel in the same condition as she was in before the collision, and to restore her in the hands of the owners to the same value as she would have had if the damage had never been done; and prima facie, the value of a damaged vessel is less by the cost of repairs than the value it would have if undamaged, though it is true that evidence may establish that the value of the vessel undamaged is exactly the same as her value after she had been damaged.' (see too Davidson v JS Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 at 3 per McPherson J, Andrews ACJ agreeing (at 1), 12 per Derrington J; Mackinnon McErlane Booker Pty Ltd v P&amp;O Australia Ltd [1988] VR 534 at 544 per Murphy J, Gray and JH Phillips JJ agreeing; Gardiner v Metcalf [1994] 2 NZLR 8 at 14 per Hardie Boys J; see too McGregor on Damages (17 th edn) [32-003], [32-007].)