Compensating advantages

The compensatory aims require the courts to assess not only the position the claimant would have been in if the breach of contract or tort had not been committed but also its actual position as a result of the tort or breach of contract, so that damages can make up the difference. Where the claimant’s actual position has been, or will be, improved by benefits acquired subsequent to and as a result of the tort or breach of contract, one might expect (in accordance with the compensatory aims) that such benefits would be taken into account—if they are ignored the claimant will be left in a better position than if the contract had been performed or if no tort had been committed. In a nutshell, one might expect ‘compensating advantages’ to be deducted or, as it is sometimes alternatively expressed, that losses mitigated would not be compensated. But in fact compensating advantages are often not deducted. Our concern here is to indicate when this is so.