Questioning the relevance of the rule in Hadley v Baxendale, Tettenborn concludes that “in practice liability as often as not depends on something other than foreseeability, and … this is demonstrated by the contortions the courts have had to introduce to the Hadley principle in order to deal with the difficulties arising under it. I have suggested that an alternative analysis, based on the parties’ agreement and the object of the broken promise, is a more promising way forward” Andrew Tettenborn, “Hadley v Baxendale Foreseeability: a Principle Beyond Its Sell-by Date?” (2007) 23 Journal of Contract Law 120 at 147.
Has the rule in Hadley v Baxendale outlived its usefulness? Do the decisions in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 and Clark v Macourt (2013) 304 ALR 220; [2013] HCA 56 support Tettenborn’s argument?