The New Flamenco

When must benefits received by the claimant be taken into account in the assessment of damages? Where the claimant would not have received the benefit “but-for” the breach, some would say that the answer is “always”,1 and many more have suggested “nearly always”.2 The compensatory principle aims to put the claimant in the same position as if the breach had not occurred.3 To “ignore” (or treat as res inter alios acta) benefits that would not have arisen but-for the breach would be to put the claimant in a better position than if the wrong had not occurred, so the argument goes.4 On this widely held (but overly simplistic) view, the claimant can never recover more than its “actual loss” evident at the date of trial: “put shortly, the claimant cannot recover for an ‘avoided loss’”.5