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Assessing loss dependent upon hypothetical past events

journal contribution
posted on 2023-06-08, 22:32 authored by Sirko HarderSirko Harder
The assessment of loss allegedly caused by a civil wrong depends upon what would have happened but for the wrong. Where this cannot be resolved with certainty, the plaintiff’s loss must be assessed either on the balance of probabilities according to the more likely hypothesis (all or nothing) or by reference to the degree of probability that an event would have occurred but for the defendant’s wrong (partial recovery). Australian courts have not subjected all uncertain events to a single approach. This article explores how the courts have approached the various categories of hypothetical past events, and how the plaintiff’s loss will be assessed where multiple events of different types are inextricably interwoven.

History

Publication status

  • Published

File Version

  • Published version

Journal

Deakin Law Review

ISSN

1321-3660

Publisher

Deakin University Victoria Australia.

Issue

2

Volume

19

Page range

199-216

Department affiliated with

  • Law Publications

Full text available

  • No

Peer reviewed?

  • Yes

Legacy Posted Date

2015-09-15

First Compliant Deposit (FCD) Date

2015-09-15

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