Causation
280For several reasons, the causation issue is the most difficult in Mr Pritchard's appeal. These difficulties also resonate, however, in the Giles Payne appeal. It is apparent that the causation issue took the bulk of the time involved in submissions before the primary judge. This has proved to be the case, as well, on the hearing of these appeals. It must also be said that the submissions at trial were, with respect, not well focussed in a number of respects.
281Mr McInerney's submissions, for example, treated almost every contingent possibility as part of the causation argument. Later, in the October motion before the primary judge, he sought to repeat these as matters requiring evaluation on the basis that each was part of the assessment of the quantum of loss. In addition, on both sides, there was little effective analysis of what was the central characteristic of DJZ's action.
282Dr Birch, on the other hand, took what might be considered to be an over-simplified position. He argued, no doubt for good forensic reasons, that the case was simply about the loss of Einstein J's judgment, suggesting that it was Mr Pritchard's negligence in relation to the November 2003 sales agreement which had resulted in the reversal of that judgment. Consequently, he argued the solicitor's negligence caused that loss. In relation to damages, Dr Birch argued that the damages properly to be recovered "crystallised" by reference to Einstein J's assessment of loss at the moment the Court of Appeal reversed his findings as to the consequences of the November 2003 sales agreement. Giles Payne, for obvious reasons, was content to ride on Dr Birch's coattails in this regard. They recognised that their liability, if any, would be substantially diminished if it were the 2003 sales agreement that caused the loss, rather than the 2001 Deed.
283It is clear that the restrictive forensic approaches taken by the parties failed to provide adequate and appropriate assistance to the primary judge. What was required was a focussed examination of the nature of the loss claimed by DJZ, and an examination of both causation and damages in the light of well established principles as to the onus and standard of proof in this type of litigation. Admittedly, these principles are not always easy to apply but, in the complexities of this case, they were essential to a correct outcome.
284In my opinion, what was in issue in the proceedings was DJZ's loss of an opportunity to recover against the James' interests the valuable rights it possessed, pursuant to the guarantees in the 1999 Deed. In commercial terms, the guarantees represented from the outset an inherently valuable right. That right, however, became realistically of value as soon as Mr James defaulted in his obligations. To that extent, the action differed from a mere chose in action such as the opportunity represented by a possible right of action maintained by, for example, a worker injured in an industrial accident. Where such a right has been lost by reason of a solicitor's negligence, a Court assessing damages in an action against the solicitor has to assess whether the action against the employer would have been successful or whether it would have failed; or to what extent it would have fallen in between success or failure. Here, the right, absent unusual circumstances, was bound to be realised in litigation.
285DJZ's primary case was that Mr Pritchard's negligence in relation to the November 2003 sales agreement deprived it at that moment of the commercial opportunity represented by the existence of the guarantee. At one moment, the right of recovery against the James' interests was there. At the next moment, it was not. Thus, the case stood somewhere between the lost opportunity case represented by, for example, an industrial claim which has become statute barred by reason of the solicitor's negligence, and the case of a lost commercial opportunity, for example, the negligence situation of the plaintiff in Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 ("Sellars"). I shall turn now to discuss the principles established in that case.
286In Sellars, the plaintiffs claimed damages for breach of s 52 of the Trade Practices Act 1974 (Cth) in circumstances where their opportunity to enter into a favourable commercial agreement had been sidetracked by the reprehensible conduct of other commercial interests. The action for damages for loss of the opportunity to enter into the first agreement, and to take advantage of the commercial opportunity that could or might have eventuated thereby, was central to the litigation. The relevant principles are set out by the High Court (Mason CJ, Dawson, Toohey and Gaudron JJ) at 355-356:
"... the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. Furthermore, it is an approach which conforms to the long-standing practice of taking into account contingencies in the assessment of damages." (Emphasis in original)
287In recent times, the High Court has repeated the important distinction referred to in Sellars between the proof of causation in a lost opportunity case, and proof of the valuation or estimation of the loss consequent upon the causation finding.
288In Tabet v Gett ([2010] HCA 12; 240 CLR 537), Kiefel J (with whose reasons Hayne, Crennan and Bell JJ agreed) said at [135]-[137]:
"[135] It is important to bear in mind, in connection with this aspect of the appellant's argument, the distinction between the loss or damage necessary to found an action in negligence, which is the injury itself and its foreseeable consequences, and damages, which are awarded as compensation for each item or aspect of the injury.
[136] Different standards apply to proof of damage from those that are involved in the assessment of damages. Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, 'the hypothetical may be conjectured.' The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible.
[137] Thus in the case of the loss of a commercial opportunity, the plaintiff must first establish the fact of the loss, for example by reference to the fact that it had a commercial interest of value which is no longer available to be pursued because of the defendant's negligence. The damages assessed of that loss, the estimation of its value, reflect the chance, often expressed in a percentage, that the opportunity would have been pursued to a successful outcome. The award is proportionate in that sense."
(Footnotes omitted; emphasis in original)
289The critical question in the Pritchard appeal, therefore, is how the well established principles stated in Sellars are to be applied in a matter such as the present.
290The first question that had to be asked was whether, on the assumption that Mr Pritchard had been negligent in his duty of care and/or in breach of his retainer in relation to the November 2003 sales agreement, this was causative of the release of the James' interests from their obligations as guarantors pursuant to the 1999 Deed.
291This, in turn, required two further questions to be asked. First, whether assuming that Mr Pritchard had acted with reasonable care and in a non-negligent manner, the release would not have occurred. Secondly, whether DJZ, through Mr Palmieri, would have accepted the non-negligent advice and acted upon it. More precisely, would Mr Palmieri have refused to agree to the execution of the Deed in the terms in which it was originally framed? Would he have been prepared to enter into a revised agreement that did not contain the troublesome clauses? These were past hypothetical issues, but it was nonetheless necessary for them to be answered before the causation issue could be found in DJZ's favour: Heenan v Di Sisto [2008] NSWCA 25; [2008] Aust Torts Reports 81-941; Sykes v Midland Bank Executor & Trustee Co Ltd [1970] 2 All ER 471; [1971] 1 QB 113. (In negligence actions, resolution of the factual causation issue will normally require a hypothetical question to be asked, although in most negligence case the result is so obvious that the question is not separately raised or debated in the proceedings, e.g. a pedestrian run down by a motor vehicle.)
292Importantly, as the principles to which I have referred demonstrate, the two hypothetical questions were to be determined in accordance with the civil standard of proof, namely, on the balance of probabilities. Of course, the Civil Liability Act 2002 had an important and critical part to play in the proceedings. Part 1A of the Civil Liability Act applied to this claim. The principles governing the determination of causation are set out in s 5D of the Act. Relevantly, that provision states:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
293As required by the statute, factual causation required proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm: Strong v Woolworths Ltd [2012] HCA 5, at [18]-[20]. In determining liability for negligence, the plaintiff always bears the onus of proving on the balance of probabilities any fact relevant to the issue of causation: s 5E. The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at 443, [55].
294As I have said, the primary judge was not overly assisted in relation to the causation issue. The parties had been required to provide the judge with a statement of issues and did so, ultimately, after a considerable degree of judicial urging. The particular issue was presented in these terms:
"16. Has DJZ suffered any loss as a consequence of the February 2001 Deed operating to release the James from their guarantee contained in clause 5 of the 1999 Deed.
...
22. Has DJZ suffered any loss as a consequence of either the 7 August 2003 Deed or the November 2003 agreement for sale operating to release the James from their guarantee contained in ... the 1 July 1999 Deed.
23. Was any loss of DJZ suffered not by reason of either the 7 August 2003 Deed or the November 2003 agreement for sale, but rather by reason of the February 2001 Deed."
295These, of course, were relevant questions, but they rather obscured the necessary central analysis. This required that a pivotal question be asked: if Mr Pritchard had acted without negligence in relation to the November 2003 sales agreement, what would have been the position of the litigation thereafter in relation to the "hypothetical" proceedings against the James? By focussing on the actual proceedings and what did happen in the Court of Appeal consequent upon Einstein J's decision, the correct question, I would respectfully suggest, was not asked.
296I return to the two principal questions I identified at [291] above. It was necessary to resolve these questions, as I have said, by the application of the civil standard of proof. First, whether, but for the negligence of Mr Pritchard, the release of the James' interests would not have occurred. Secondly, whether DJZ, through Mr Palmieri, would have accepted the non-negligent advice, refused to agree to the execution of the Deed as it had been originally framed, and agreed to the appropriate amendments.
297Thus, the issue as to whether DJZ would have entered into a Deed in altered terms - one which contained an express covenant not to sue and which provided for the sale of the Christian units by way of an exercise of the 1999 Deed's power of sale - was a matter that went to causation. Accordingly, once these two questions were found in DJZ's favour, loss or damage so as to found the action in negligence would have been established: Tabet v Gett at [135]. By contrast, the question as to whether the Christian interests would have agreed to enter into a sales agreement in altered terms was a matter that went to assessment of damages. This question was not to be addressed by the civil standard of proof in recognition of the principles to which I have referred. It involved past hypothetical events (which would or might have happened) and accordingly the civil standard of proof was not applicable to the resolution of those questions. Damages had to be assessed according to the degree of probability that the events would have occurred, provided that the probability was not so low as to be speculative or so high as to be practically certain: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643. The task of the Court in that regard was to assess the degree of probability that an event would have occurred, and adjust its award of damages to reflect that degree of probability.
298There were, however, in the particular complexity of these proceedings, other issues raised on the causation and loss issues: had DJZ alienated its right of recovery for damages by entering into the 2005 overall settlement? Could DJZ maintain the quantum of its claim in light of the fact that its solicitor's costs had been paid by a related company, Palmieri Developments Pty Ltd, and not directly by DJZ? Had it been proven that Mrs James had sufficient assets or means to meet a judgment for recovery of the amount otherwise payable pursuant to the 1999 guarantees? These questions, with the exception of the last, were essentially in the nature of past historical issues rather than hypothetical. Thus, they too were to be resolved by the application of the civil standard.
299As I have stated, the central causation issue, as to whether the loss of the right to proceed on the guarantees was caused by the 2003 sales agreement or by some earlier arrangement, was one which needed to be viewed through a hypothetical prism. Since it was, however, a causation issue, proof was required on the civil standard. It will be convenient to deal with this issue first before answering the specific questions I have posed.
300Mr McInerney argued (both at trial and in these appeals) that, if Mr Pritchard acted negligently (or in breach of his retainer) in connection with the November 2003 sales agreement, his negligence did not thereby release the James' interests, because they had already been released by the February 2001 Deed and, if that were not so, by the August 2003 Deed. Applying the 'but for' test in this hypothetical prism, had Mr Pritchard acted in a non-negligent manner in relation to the November 2003 sales agreement, would the commercial opportunity represented by the rights under the guarantees have been preserved and recognised in a subsequent judgment? Mr McInerney argued that the answer to this question was 'no'. The reason he advanced was that each of the earlier Deeds had released the James' interests from their obligations under the 1999 guarantees.
301The primary judge did not accept that the February 2001 Deed was the "true cause" of DJZ's loss: primary judgment at [232]. It was not, her Honour found, the basis upon which the Court of Appeal had reached its conclusions. The 2003 sales agreement was, she found, the cause of the loss, that being the factor upon which the Court of Appeal's judgment was based: primary judgment at [233]-[236]. Her Honour also placed reliance on observations by Hayne and Bell JJ in Tabet v Gett at [66] and [69]. Finally, her Honour made reference to the discussion by McHugh J in Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408), where his Honour had recognised that, where separate and independent acts of negligence directly cause injury, each may be sued upon. Her Honour concluded that Mr Pritchard had been negligent in the work undertaken for DJZ in respect of the 2003 agreement "irrespective of any earlier negligence". The cause of DJZ's damage was, accordingly, Mr Pritchard's negligence in relation to the 2003 agreement: primary judgment at [236].
302The approach adopted by the primary judge, I would respectfully suggest, left the correct question unaddressed. The situation in the hypothetical trial had to be considered, although her Honour correctly recognised that the approach taken by defence counsel for the James at the trial before Einstein J was not altogether irrelevant. It was, however, instructive but not necessarily sufficient, in my opinion, to base a conclusion solely on what had actually happened. Although perhaps unlikely, counsel for the James in the hypothetical trial may have sought to place reliance on the earlier arrangements; that possibility could not be ignored.
303Further, I do not consider that the remarks of Hayne and Bell JJ in Tabet v Gett, in their context, provided any assistance in the resolution of the problem. That case was concerned with a very different and unusual question, namely, whether damages should have been awarded for the loss of a chance of a better medical outcome in a medical negligence case. The question of law which the injured plaintiff had put in the High Court was as follows:
"Does the common law of negligence in Australia recognise a less than even chance of avoiding an adverse health outcome as an interest of value to a patient, the loss of which by reason of a doctor's negligence, can be compensated as damage suffered by that patient?"
304The conclusion reached was as stated by Kiefel J at [152]:
"The appellant is unable to prove that it was probable that, had treatment by corticosteroids been undertaken earlier, the brain damage which occurred on 14 January 1991 would have been avoided. The evidence was insufficient to be persuasive. The requirement of causation is not overcome by redefining the mere possibility, that such damage as did occur might not eventuate, as a chance and then saying that it is lost when the damage actually occurs. Such a claim could only succeed if the standard of proof were lowered, which would require a fundamental change to the law of negligence. ... It would involve holding the respondent liable for damage which he almost certainly did not cause."
305The remarks by Hayne and Bell JJ, on which the primary judge placed relevance, provided support for Kiefel J's conclusion that the appellant in that case had not demonstrated that the respondent's negligence was a cause of the damage. The full context is shown by the paragraphs which were not cited by the primary judge, namely, [67]-[68]:
"[67] In this case, saying that a chance of a better medical outcome was lost presupposes that it was not demonstrated that the respondent's negligence had caused any difference in the appellant's state of health. That is, it was not demonstrated that the respondent's negligence was probably a cause of any part of the appellant's brain damage.
[68] As Gummow ACJ explains, to accept that the appellant's loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants. That step should not be taken. The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was." (Emphasis in original)
306While I am unable to agree that the primary judge's approach to the issue of causation was the one required by the principles to which I have made earlier reference, I nevertheless agree that the ultimate conclusion reached by her Honour was the correct one. I shall explain why this is so.
307First, I am not satisfied, in any event, that upon a hypothetical trial either deed would have been found to have occasioned the release of the James' interests from their obligations pursuant to the guarantees. Further, even if this were not right, I would nonetheless be satisfied, for the reasons already given, that, at the actual trial, Mr Pritchard should have been held to have been in breach of his duty of care to DJZ in relation to the February 2001 Deed; and to have been negligent, or in breach of his retainer, in relation to the August 2003 Deed, contrary to the findings of the primary judge.
308As to the first matter, I have earlier (at [252]-[258] above) explained why, in my opinion, it has not been shown that the February 2001 Deed operated as a release. In relation to the August 2003 Deed, as I will show, the evidence fails to demonstrate that it ever became operative.
309The August 2003 Deed was, it seems, executed by the parties. However, it remained undated and in an incomplete state in a number of important respects. Moreover, there was no evidence that, as was contemplated, it was ever "exchanged" between the parties. Importantly, within a short time, its contemplated outcome was replaced by a completely different arrangement. The August "arrangement" had contemplated that the Christians would leave the business altogether. In early October, however, Mrs Christian informed Ms Becker that the Christians had now agreed to buy the business and operate it, not resign from it. The November 2003 sales agreement confirmed this arrangement and stated in clause 26.6 that the earlier "proposed" Deed had "not been completed". It stated: "the parties to this agreement shall have no rights or claims against other party as a result of the proposed Deed". Schedule 15 confirmed that the "proposed Deed" was the August 2003 Deed.
310In any event if, as I have found, Mr Pritchard was negligent, and breached his duty of care and/or retainer, in relation to the earlier deeds, Mr McInerney's argument leads nowhere. It was always part of DJZ's pleaded case that Mr Pritchard had been negligent in relation to the earlier deeds, as well as the 2003 sales agreement. On the hypothetical assumption that he had not acted negligently in relation to the 2003 sales agreement, it would not have assisted his defence before the primary judge to establish that there was a release of the James' obligations by virtue of the earlier deeds. He would have remained nonetheless liable in negligence, even if that were the case.
311Mr McInerney's criticisms of the primary judge's reasons fell into three groups. First, he complained that the primary judge had failed to make the findings required by s 5D Civil Liability Act. The immediate answer to this is that the only finding required on the facts of this case was one under s 5D(1). It is inherent in her Honour's findings that she determined that the solicitor's negligence was a necessary condition of the occurrence of the harm. It was not necessary for her Honour to make this finding expressly in terms of s 5D(1), but that was the clear effect and intention of her finding: Laresu Pty Ltd v Clark [2010] NSWCA 180; [2010] Aust Torts R 82-068 at [42]; Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 at [445]; 77 NSWLR 360.
312This was not a case, on its facts, that required any finding under s 5D(2). There was no suggestion that, if factual causation were established, there was any need to consider "scope of liability". I would reject this first criticism of the primary judge's reasons.
313Secondly, Mr McInerney argued that the relevant loss was the cause of action that DJZ possessed to sue Mrs James under the guarantee provisions of the 1999 Deed. However, in my opinion, this is not an entirely accurate description. This was a loss of opportunity case and the loss was, as I have said earlier, the opportunity to realise the commercial benefit of the rights conferred under the guarantee. Barring the solicitor's negligence, there was no barrier to the realisation of that opportunity although, as Mr McInerney's submissions correctly recognised, there had to be an application of the "but for" test in the context of a hypothetical evaluation, as I have already explained.
314Thirdly, Mr McInerney argued that the primary judge had failed to apply two necessary tests. The first was described as the WCW Pty Ltd v Bolster issue (this was a reference to a decision by the Full Court of the Federal Court of Australia, unrep., 6 January 1993, Einfeld, Foster and Drummond JJ).
315The second necessary test, counsel argued, was to assess whether, on the balance of probabilities, in respect of the hypothetical trial of DJZ's cause of action against Mrs James there would have been success, failure or, if neither of these, an intermediate determination of the prospects of success. This was referred to as the Johnson v Perez issue: [1988] HCA 64; 166 CLR 351. Particular reliance was placed upon the remarks of Brennan J (dissenting) at 371-372.
316In my opinion, neither of these suggested tests was of direct assistance in the present matter. They were, with respect, likely to confuse the correct approach, as I think they did. Indeed, the first "test" has been disproved by a decision of this Court: Heenan v Di Sisto per Giles JA at [34], with whom Mason P and Mathews AJA agreed.
317WCW Pty Ltd v Bolster concerned an action against a solicitor for professional negligence. Mr Bolster had failed to advise a client of the desirability of taking certain warranties in a contract. The Full Court observed that:
"Before this particular case against the solicitor could have been established, the appellant would have had to prove first, that as a result of the solicitor's failure to give the advice, it lost an opportunity to seek warranties that would have provided it with protection in the events which have happened; secondly, that it would have accepted that advice; thirdly, that it would have required such warranties from the vendors; and fourthly, that either the vendors would have agreed to warranties in a form that would have given the appellant a right of action against them in the events which have now happened or, if they had refused to do so, that the appellant would not have signed the contract: see Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 172-3. Even if a negligent failure to advise can be established, a failure to prove these matters does not merely deprive the appellant of an entitlement to limited damages for the loss of the chance of obtaining protective warranties; it means failure to establish the cause of action: ibid, at 173."
318It is important to observe that in Sellars, the High Court declined to follow Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd [1984] HCA 59; 157 CLR 149). At 355, the plurality said:
"Notwithstanding the observations of this court in Norwest, we consider that acceptance of the principle enunciated in Malec requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s 52(1), should be ascertained by reference to the court's assessment of the prospects of success of that opportunity had it been pursued. The principle recognised in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts."
319As I have already pointed out, the plurality in Sellars confirmed that the general standard of proof in civil actions would ordinarily govern the issue of causation and the issue whether the applicant has sustained the loss or damage represented by the loss of the opportunity or chance. However, once it had been shown that some loss or damage had been sustained, in that the contravening conduct has caused the loss of a commercial opportunity which had some value, the value is then ascertained by reference to the degrees of probabilities or possibilities.
320WCW Pty Ltd v Bolster, accordingly, had no role to play in the present matter.
321As to the Johnson v Perez proposition, it needs to be borne in mind that this case (and the associated case of Nikolaou v Papasavas Phillips & Co) concerned the issue as to whether, in a case where a plaintiff had lost the benefit of an action he might successfully have brought but for the negligence of his solicitor in allowing its dismissal for want of prosecution (or because the action had become statute barred), the loss crystallises at the date of that dismissal, or at a later time. The former was held to be the relevant date by Wilson, Toohey and Gaudron JJ with Brennan and Deane JJ dissenting. It was a case, however, that concerned assessment of damages. It was not concerned with causation.
322Mr McInerney placed reliance on remarks made by Brennan J at 173 in Johnson v Perez. These remarks were examined by the plurality in Sellars. While they were not disapproved, they were clearly not adopted: see plurality decision at 353-354. More significantly, Brennan J, in his own decision in Sellars, after a careful analysis of previous authorities, said at 368:
"Where a loss is alleged to be a lost opportunity to acquire a benefit, a plaintiff who bears the onus of proving that a loss was caused by the conduct of the defendant discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought by the plaintiff. Up to that point, the plaintiff must establish both the historical facts and any necessary hypothesis on the balance of probabilities. A constant standard of proof applies to the finding that a loss has been suffered and to the finding that that loss was caused by the defendant's conduct, whether those findings depend on evidence of historical facts or on evidence giving rise to competing hypotheses. In any event, the standard is proof on the balance of probabilities.
Although the issue of a loss caused by the defendant's conduct must be established on the balance of probabilities, hypotheses and possibilities the fulfilment of which cannot be proved must be evaluated to determine the amount or value of the loss suffered. Proof on the balance of probabilities has no part to play in the evaluation of such hypotheses or possibilities: evaluation is a matter of informed estimation."
The distinction which the plurality had acknowledged in Sellars was, as can be seen, also embraced by Brennan J.
323As I have earlier pointed out, Mr McInerney's submissions fell into the error of drawing, or failing to draw, an adequate distinction between the issue as to whether the solicitor's negligence caused a loss, and the secondary question as to how damages for the loss were to be estimated.
324Thus, the primary question I posed - but for the negligence of Mr Pritchard, would the James' release from their obligations have occurred - must be answered, as it was by the primary judge, in favour of DJZ.