David Winterton and Michael Dimarco on Future Performance and Proof in Contract Damages (Sydney Law Review)

"Future Performance and Proof in Contract Damages"
Michael Dimarco, David Winterton
Sydney Law Review
Published online: April 2026

Abstract: A longstanding common law controversy is whether, following a contract’s termination for the defendant’s repudiatory breach, the plaintiff’s entitlement to substantial damages depends upon proving its ability to have performed any outstanding, and now discharged, obligations. This question may arise in various distinct contexts and consideration of the relevant case law reveals that courts have not imposed identical proof requirements across these different scenarios. Despite these ostensible inconsistencies, the adoption of a two-stage model reveals the existence of an intelligible order within the leading authorities. The first stage involves determining the nature of the relationship between the parties’ unperformed obligations. This relationship may decisively determine what the plaintiff must prove to recover substantial damages. But if not, the onus of proving whether the plaintiff would have been able to perform any remaining obligations, if relevant to its entitlement to substantial damages, must be allocated. Proper allocation of this onus requires consideration of certain other features of the case, including most notably the presumptive availability of specific performance to the plaintiff. This article explains the operation of this model by analysing the leading English and Australian decisions, providing a framework for resolving the various scenarios that may arise.

David Winterton on Examining Mitigation in the Law of Damages and the Limits of the Compensatory Principle (Oxford Journal of Legal Studies)

"Examining Mitigation in the Law of Damages and the Limits of the Compensatory Principle"
David Winterton
Oxford Journal of Legal Studies
Published online: December 2025

Abstract: In Causation in the Law, Hart and Honoré famously argued that the attribution of responsibility for outcomes within the law is broadly consistent with the ordinary person’s non-legal judgments about responsibility, whilst simultaneously drawing an important distinction between ‘causal’ and non-causal’ rules of responsibility attribution. In Mitigation in the Law of Damages, Andrew Summers argues that the theory of ‘common-sense causation’ Hart and Honoré advanced also persuasively explains the English law of mitigation. In addition to considering the continuing relevance of this analysis today, and noting the need for an improved understanding of legal responsibility’s non-causal limits, the present article critically evaluates Summers’s descriptive claims. It is argued that while Summers offers a generally compelling rationalisation of the avoidable loss rule, his analysis of the authorities concerned with the relevance of consequential benefits derived from the wrong when assessing damages following civil wrongdoing is substantively incomplete.

HKU Law Welcomes Prof. David Winterton

Welcome to Prof. David Winterton, who joins the Faculty of Law as an Associate Professor.

David is an Associate Professor at the University of Hong Kong, with a specialization in contract law, commercial remedies, restitution and private law theory. He has published in several leading academic journals, as well as a monograph based on his doctrinal dissertation, entitled Money Awards in Contract Law (Bloomsbury 2015), which was shortlisted for the St Petersburg International Legal Forum Private Law Prize in 2018. His work has also been cited in various judicial decisions, including in the ultimate appellate courts of Australia and Canada.

Prior to his arrival in Hong Kong, David was a Senior Lecturer at the University of Sydney, and prior to that a Lecturer at UNSW and a stipendiary lecturer at St Anne’s College, Oxford. He holds a BSc (Pure Mathematics) and an LLB from UNSW and a BCL (Dist), MPhil and DPhil from the University of Oxford. Additionally, David has spent some time in legal practice in both Sydney (commercial litigation) and New York (Bankruptcy & Restructuring). He is admitted as a legal practitioner in NSW (2006) and as an Attorney in New York (2012).