Janos v Chama Motors Pty Ltd [2011] NSWCA 238

Handley AJA (Giles JA agreeing):

36. In awarding damages for prospective loss the court takes into account later events that increase or diminish that loss. The leading Australian case is Willis v The Commonwealth [1946] HCA 22, 73 CLR 105 where the widow’s damages for the death of her husband were reduced because she remarried before the trial. Latham CJ said at p109:

 “Damages are awarded for injury actually suffered and for prospective injury. Prospective injury can only be estimated with more or less probability. But where the extent and character of what would at one time be described as prospective injury depends upon the happening or non-happening of a particular event and that event has in fact happened, it is unnecessary to speculate as to whether or not this event might happen and, if so, when. In such a case prospective damage (or diminution of damage) has become actual.”

37. Dixon J said (at p116) that the court was not limited to the probabilities at the date of death because “where facts are available they are to be preferred to prophecies”.

38. The cases cited by Dixon J included a number of non-tort cases, and the principle is of general application: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54, 217 CLR 640, 658-9 [39].

39. These principles were applied in The Golden Victory [2007] UK HL 12, [2007] 2 AC 353. The vessel had been chartered in 1998 until December 2005, but in December 2001 the charterers repudiated. The owner terminated and claimed damages. The second Gulf War broke out in March 2003 before the damages were assessed. The charterer would then have been entitled to cancel the contract under a war clause.

40. The majority held that the owner was not entitled to damages for loss of the charter after it could lawfully have been terminated by the charterer.

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