Searle v Commonwealth of Australia (No.9)

The court considered claims from nine group members who had brought a representative proceeding against the Commonwealth of Australia. The members alleged that they had lost a chance to gain employment as a result of the Commonwealth's failure to provide training as required under a contract. The court was required to determine the damages for the lost chance of employment, considering the personal circumstances and aspirations of each group member.

The primary legal issues involved the assessment of damages for the loss of a chance, the valuation of this chance in terms of hypothetical lost earnings, and the consideration of mitigating factors such as personal decisions and aspirations. The court had to decide whether the breach affected the assessment of damages and whether the valuation depended on the assumption that the group members should have undertaken further training.

The court determined that the lost chance was quantifiable based on the likelihood of realising hypothetical lost earnings greater than the actual earnings. It assessed each group member's personal circumstances, including their aspirations and plans, to determine the valuation of the lost chance. The court further held that the nature of the breach did not affect the assessment of damages, and that the valuation of part performance was not contingent on a defence of failure to mitigate. The court also rejected the Commonwealth's argument that the lost chance should be discounted solely based on the group members' personal decisions.

The court awarded damages to each group member based on the specific evidence presented. It concluded that the lost chance was valued based on the likelihood of realising the hypothetical lost earnings, adjusted for the possibility that the chance would not be realised. The court further determined that the personal aspirations and plans of each group member affected the valuation of the lost chance.