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Harder (2016) 28 Bond Law Review 1-19.pdf (35.1 MB)

Evaluating a lost opportunity to sue

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posted on 2023-06-09, 20:10 authored by Sirko HarderSirko Harder
Where a defendant’s wrong deprived the plaintiff of an opportunity to bring an action and obtain a judgment against a third party, the court deciding on the defendant’s liability will determine how the action against the third party would have been decided, rather than forming a view on whether the plaintiff ought to have succeeded. The plaintiff’s loss will be assessed by reference to the degree of probability that the hypothetical action would have succeeded. Two figures must thus be determined: the likely amount that the plaintiff would have been awarded had an action against the third party been successfully brought, and the probability that such an action would have been successful. This article explores the principles governing the determination of those two figures. In addition, this article investigates how benefits obtained by the plaintiff as a result of the third party’s wrong impact upon the defendant’s liability.

History

Publication status

  • Published

File Version

  • Published version

Journal

Bond Law Review

ISSN

1033-4505

Publisher

Bond University

Issue

1

Volume

28

Page range

1-19

Department affiliated with

  • Law Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2020-01-09

First Open Access (FOA) Date

2020-01-09

First Compliant Deposit (FCD) Date

2020-01-07

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