Assessing Loss Dependent upon Hypothetical Past Events

Abstract

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