The principle derived from [name withheld] v [name withheld], permitting courts to resolve uncertainty against a wrongdoer in quantifying damages, extends beyond cases where the defendant controls relevant evidence to cases where the defendant's wrong has thrust the victim into a difficult task of proving a past hypothetical. However, this is not a substitute for proof of loss, and need not be taken in every case; where within the proved case there is a range, the wrongdoer cannot complain if the loss is found at the upper end. Appellate courts will review percentage discounts for contingencies in damages assessment as discretionary decisions under House v The King principles, and will intervene where the primary judge has misapprehended the facts underlying the assessment.
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