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2 results

  • 2 - Assessment of compensation

  • from Part 1 - General principles of compensation
  • Katy Barnett, University of Melbourne, Sirko Harder, University of Sussex
  • Book:
    Remedies in Australian Private Law
    Published online:
    25 October 2024
    Print publication:
    30 November 2024, pp 24-78

  • Summary

    This chapter discusses the general principles relating to the assessment of compensation for loss resulting from a civil wrong. Since courts and legislatures often lay down legal rules for a particular area of law, the assessment of compensation differs between areas. This is why Part 2 contains separate chapters for contract, tort, the Australian Consumer Law and equity. However, there are several commonalities between the areas, in particular, contract and tort. This chapter discusses the rules that are common to at least contract and tort. Most of them also apply in equity and under the Australian Consumer Law. Deviations from those rules in equity or under the Australian Consumer Law are discussed in the relevant chapters. This chapter also provides a brief introduction to those matters that differ between contract and tort. Comprehensive treatment is given to the date of assessment; even though there are significant differences between the causes of actions, there has been considerable convergence.

  • THE ACTUAL LOSS ILLUSION

  • Andrew Fell, Iain Field
  • Journal:
    The Cambridge Law Journal / Volume 83 / Issue 2 / July 2024
    Published online by Cambridge University Press:
    09 September 2024, pp. 301-333
    Print publication:
    July 2024
    • Article
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  • On the orthodox account of the private law compensatory principle, the claimant is compensated for the loss that they actually suffered because of the defendant’s wrong. Although the principle has various exceptions, it is widely accepted in both case law and academic commentary. We argue that it is nevertheless flawed, both doctrinally and theoretically. Claimants are never really compensated for their actual loss, and, contrary to popular belief, leading theoretical accounts of private law compensation (corrective justice and the continuity thesis) suggest that a principle of compensation for actual loss is not desirable in any event.