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(35) For their Honours, the case could be resolved simply on the basis that Clark discharged her onus of proving that purchasing the Xytex sperm was 'necessary' to restore her to the position she would have been in absent SGFC's breach in combination with the fact that no attempt was made by Macourt to show that Clark 'could have obtained replacement sperm more cheaply than she acquired such sperm from Xytex'.
His Honour's analysis concluded by refuting the argument advanced by Macourt that Clark had in fact avoided any Toss' caused by SGFC's breach by purchasing replacement sperm from Xytex, which would have prevented recovery in accordance with British Westinghouse.
This meant that the monetary award to which she was entitled was unaffected by her eventual factual position, including any benefit that may have accrued to her as a result of receiving the Xytex sperm instead of that which SGFC promised to deliver.
The claim is essentially that Clark was entitled to recover the monetary equivalent of the performance which SGFC failed to provide, with the cost of purchasing replacement sperm being the best available evidence of that amount.
(116) In this context it is noteworthy that all the judges described their task in terms of assessing the 'loss' Clark suffered due to SGFC's breach.
(86) Macourt, in other words, argued that Clark was making a claim for loss suffered and therefore was limited to a sum that made good the detrimental financial consequences attributable to SGFCs breach.
(89) On this basis it is suggested that Clark's claim is best understood as one seeking a monetary substitute for SGFCs defective performance rather than as an award designed to make good the financial 'loss' she suffered as a result of SGFCs breach.