VACC Insurance Co Ltd v Lekkas [1999] VSCA 31

Court of Appeal (Vic)|1999-03-30|Before: BROOKING, ORMISTON and BUCHANAN, JJ.A.

For the reasons I have stated I am of the opinion that the judgment of the court at first instance should be set aside and in lieu there should be judgment for the respondents in an amount of $42,974.64, made up of the loss of value of $40,000 and the agreed loss of rent of $2,974.64.

His Honour was also entitled to rely upon the evidence of the acquisition which occurred in June 1995 in assessing the value of the chance of such an event occurring at the date of the fire, just as a court assessing damages for injury as at the date when the injury was sustained will have regard to later events that reveal the extent of the injury. As Latham, C.J. said in ; , at p.109:

In Johnson v. Perez [1988] HCA 64; (1988) 166 C.L.R. 351, it was held that where a plaintiff 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, his loss crytallized at the date of the dismissal and damages where to be quantified at that time. At pp.368 Wilson, Toohey and Gaudron, JJ. contemplated the admission of evidence of events occurring after the dismissal

See also Nikolaou v. Papasavas Phillips & Co. [1989] HCA 11; (1989) 166 C.L.R. 394, at 403-4 per Wilson, Dawson, Toohey and Gaudron, JJ.

In assessing damages in contract and in tort the law recognizes a lost commercial opportunity as a compensible loss notwithstanding that, on the balance of probabilities, it is more likely than not that the opportunity will not be realized. See Chaplin v. Hicks [1911] 2 K.B. 786; The Commonwealth v. Amann Aviation Pty. Ltd. [1991] HCA 54; (1991) 174 C.L.R. 64 at 92, 102-4, 118-9; Malec v. J.C. Hutton Pty. Ltd. [1990] HCA 20; (1990) 169 C.L.R. 638; Davies v. Taylor [1974] A.C. 207, at 212, 219; and Sellars v. Adelaide Petroleum N.L. [1994] HCA 4; (1994) 179 C.L.R. 332. In my opinion it is logical to take the same approach to the assessment of the loss sustained by an insured under a policy of insurance. Provided that the chance of its occurrence is not merely fanciful, a future event which will affect the amount of the loss is to be taken into account in order to ascertain the true measure of loss.

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