AFA Airconditioning Pty Ltd v Mendrecki; Doan v Mendrecki (No 2)
[2008] SASC 236
•27 August 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
AFA AIRCONDITIONING PTY LTD v MENDRECKI & ORS; DOAN & ANOR v MENDRECKI & ORS (No 2)
[2008] SASC 236
Reasons for the Orders of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)
27 August 2008
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - DAMAGES INADEQUATE
PROCEDURE - COSTS - APPEALS AS TO COSTS
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT
Review of two items of damages in light of reasons of the Court - apportionment of costs of appeal - costs of trial remitted to trial Judge for determination.
Development Act 1993 (SA) s 72; Occupational Health, Safety and Welfare Act 1986 (SA) s 23, referred to.
AFA Airconditioning Pty Ltd v Mendrecki & Ors; Doan & Anor v Mendrecki & Ors [2008] SASC 195, discussed.
Sanderson v Blyth Theatre Co [1903] 2 KB 533; Bullock v London General Omnibus Co [1907] 1 KB 264, considered.
AFA AIRCONDITIONING PTY LTD v MENDRECKI & ORS; DOAN & ANOR v MENDRECKI & ORS (No 2)
[2008] SASC 236Full Court: Duggan, Bleby and Layton JJ
THE COURT: Following the publication of reasons of this Court on the appeals on 17 July 2008, further submissions were heard by the Court on 7 August 2008 on two issues: first, whether two items of the damages award should be reviewed; second, the orders for costs which should be made on appeal and in relation to the trial in the light of the reasons for decision given by this Court.
In relation to the first matter, the plaintiff applied to have this Court review two aspects of the award for damages: first, the amount of interest to be awarded for past gratuitous assistance, referred to in [306] and [310] of the reasons; second, to review the award for pain and suffering referred to in [310], in the light of the findings of fact made by this Court.
In relation to the first item, it was agreed that the amount which should be awarded for interest on the sum of $40,768 for past gratuitous services should have read $14,260 in lieu of the sum of $1,340 indicated in the reasons for decision.[1] The result is that the award for past gratuitous services including interest should be $55,028 in lieu of the sum of $42,108.[2]
[1] AFA Airconditioning Pty Ltd v Mendrecki & Ors; Doan & Anor v Mendrecki & Ors [2008] SASC 195, [306] and [310].
[2] Ibid, [310].
With regard to the second item of damages, the plaintiff’s submission was that the damages award for pain and suffering should be reviewed to reflect the findings made by this Court on appeal, namely, that contrary to the finding of the trial Judge, the plaintiff’s psychiatric/psychological state had not resolved as at December 2004 and was still affecting him up until mid-2005.[3] Further, that contrary to the finding of the trial judge, the failure of the plaintiff to undergo a fusion operation prior to operation was not unreasonable.[4]
[3] Ibid, [184], [212], [213], [246].
[4] Ibid, [242], [248], [249].
It was submitted by the plaintiff that these two factors warranted an increase in the amount of damages awarded for non-economic loss beyond the figure $64,800 awarded by the trial Judge for pain and suffering, including interest.[5]
[5] Ibid, [310].
In relation to the psychiatric/psychological condition of the plaintiff, this Court found that this condition had significantly improved over time and was continuing to improve.[6] The increasing improvement between December 2004 up until the delivery of the judgment on 20 December 2006 is not a matter which would warrant a great increase in the damages for non-economic loss.
[6] AFA Airconditioning Pty Ltd v Mendrecki & Ors; Doan & Anor v Mendrecki & Ors [2008] SASC 195, [211], [213], 215.
In relation to the plaintiff’s failure to have an operation, the finding by this Court was that there had not been an unreasonable refusal to have an operation as at December 2004, but that instead the plaintiff should have been allowed a period of six months from 20 December 2006[7] to undergo the operation.[8] The damages awarded by the trial Judge compensated the plaintiff for pain and suffering up until the time when a successful operation would have had the effect of significantly relieving the pain and its associated disability, albeit leaving him with a fused ankle. The finding by this Court extended the period during which the plaintiff should be compensated for his pain and suffering, unrelieved by a successful operation for a period of two and a half years. This is a matter which would warrant an increase in the damages assessed for non-economic loss, but again not a large amount.
[7] The date of the judgment by the trial Judge.
[8] AFA Airconditioning Pty Ltd v Mendrecki & Ors; Doan & Anor v Mendrecki & Ors [2008] SASC 195, [249].
Having regard to both of these factors we would increase the damages for non-economic loss, including interest, from a sum of $64,800 to a sum of $75,000 including interest. Therefore the damages for pain and suffering should be assessed at $75,000 in lieu of $64,800 in [310].
As a consequence of these two amendments we consider that the plaintiff should be awarded the following:
Pain and suffering (including interest) $ 75,000.00
Past economic loss (including interest) $ 328,000.00
Loss of future earning capacity $ 533,000.00
Past gratuitous assistance (including interest) $ 55,028.00
Special damages – agreed $ 9,649.96
Operation $ 8,500.00
Psychiatric consultations $ 2,546.00
TOTAL $ 1,011,723.96Costs
The final judgment of the District Court on all issues in the trial is contained in three sets of orders made by the trial judge on 2 February, 15 February and 1 March 2007. There were three appeals and there was a cross-appeal in relation to each appeal. In two of the appeals there was a notice of contention given by the plaintiff.
Appeal 201 of 2007
The fourth defendant appealed against the judgment in favour of the plaintiff. The appeal and the plaintiff’s notice of contention raised the issues of liability, contributory negligence and the quantum of damages. They called in question of the orders made on 2 February 2007. The plaintiff cross-appealed. All defendants were respondents to the cross-appeal. The cross-appeal raised the issues of quantum of damages and costs. It called in question one of the orders made on 2 February and some of the orders made on 15 February 2007.
Appeal 238 of 2007
The first and second defendants appealed against the judgment in favour of the plaintiff. The appeal, including the supplementary notice of appeal and the plaintiff’s notice of contention, raised the issues of liability, contributory negligence and the quantum of damages and costs. They called in question some or all of the three sets of orders made by the trial Judge. The plaintiff cross-appealed. All defendants were respondents to the cross-appeal. The cross-appeal was on quantum of damages and costs. It called in question one of the orders made on 2 February and some of the orders made on 15 February 2007.
Appeal 327 of 2007
The fourth defendant appealed against the order for contribution. The second, third and fifth defendants were joined as respondents to the appeal. The first and second defendants cross-appealed against the order for contribution. The appeal and cross-appeal called in question some of the orders made on 1 March 2007.
In broad terms, the first, second and fourth defendants were successful in having the finding of liability against them set aside. However, they were unsuccessful on various issues raised by them. Those issues included, in the case of the fourth defendant, contributory negligence and the argument on s 72 of the Development Act 1993. The first and second defendants were unsuccessful on the issue as to whether they were occupiers and the issues of contributory negligence, s 72 of the Development Act and s 23 of the Occupational Health Safety and Welfare Act 1986. In addition, all defendants involved in the appeals were unsuccessful in relation to the quantum of damages.
In all the circumstances we consider that there should be no order as to the appeal costs as between the plaintiff and the first, second and fourth defendants.
The third and fifth defendants were not represented on the hearing of the appeal. However, in view of the increase in the quantum of damages, they should pay the plaintiff’s costs of the cross-appeals on that issue.
The issue of contribution as between the first, second and fourth defendants became irrelevant by virtue of the ruling on appeal that these defendants were not liable to the plaintiff. It is appropriate, therefore, to make no order as to the costs of the appeal and cross-appeal in Appeal 327 of 2007.
The plaintiff sought orders in the nature of a Sanderson[9] order or alternatively a Bullock[10] order against the third and fifth defendants in relation to the costs of the trial. Those defendants were not represented on the appeal. They have not been heard on the costs consequences for the trial of the orders that must now be made on the appeals and cross-appeals. Furthermore, the question whether a Sanderson or Bullock order should be made in respect of the trial costs is best reserved to the trial Judge for determination on notice to the third and fifth defendants in the light of the orders now to be made on the appeal.
[9] See Sanderson v Blyth Theatre Co [1903] 2 KB 533.
[10] See Bullock v London General Omnibus Co [1907] 1 KB 264.
We are therefore of the view that the costs of the action, including the costs of the contribution proceedings, should be remitted to the trial Judge for determination subject to the orders of the District Court identified in the formal orders of this Court.
Orders
The orders which the Court proposes to make on the appeals and cross-appeals are set out in the Annexure to these reasons.
ANNEXURE
Appeal in Action No 201 of 2007
1.That the appeal be allowed.
2.That the cross-appeal be allowed.
3.That the following paragraphs of the orders of the District Court of South Australia made on the respective dates hereunder be set aside:
2 February 2007: Paragraph 1
15 February 2007: Paragraph 2
4.That in lieu of the orders referred to in paragraph 3 the following orders be substituted to operate as from 2 February 2007:
(1)That the plaintiff recover from the third and fifth defendants the sum of $1,011,723.96.
(2)That the plaintiff’s claim against the first, second and fourth defendants be dismissed.
5.That the third and fifth defendants have liberty to apply to a Judge of the District Court to apportion liability between them.
6.That, subject to the orders of the District Court of South Australia not set aside by paragraph 3, the question of the costs of the action including the costs of the contribution proceedings be remitted to the trial Judge for determination upon notice to the third and fifth defendants.
7.That there be no order as to the costs of the appeal of the fourth defendant.
8.That the third and fifth defendants pay the plaintiff’s costs of the cross-appeal.
Appeal in Action No 238 of 2007
1.That the appeal be allowed.
2.That the cross-appeal be allowed.
3.That the following paragraphs of the orders of the District Court of South Australia made on the respective dates hereunder be set aside:
2 February 2007: Paragraph 1
15 February 2007: Paragraph 2
1 March 2007: Paragraphs 1, 3, 4 and 5
4.That in lieu of the orders referred to in paragraph 3 the following orders be substituted to operate as from 2 February 2007:
(1)That the plaintiff recover from the third and fifth defendants the sum of $1,011,723.96.
(2)That the plaintiff’s claim against the first, second and fourth defendants be dismissed.
5.That the third and fifth defendants have liberty to apply to a Judge of the District Court to apportion liability between them.
6.That, subject to the orders of the District Court of South Australia not set aside by paragraph 3, the question of the costs of the action including the costs of the contribution proceedings be remitted to the trial Judge for determination upon notice to the third and fifth defendants.
7.That there be no order as to the costs of the appeal of the first and second defendants.
8.That the third and fifth defendants pay the plaintiff’s costs of the cross-appeal.
Appeal in Action No 327 of 2007
1.That the appeal be allowed.
2.That the cross-appeal be allowed.
3.That paragraphs 1, 3, 4, and 5 of the orders of the District Court of South Australia made on 1 March 2007 be set aside.
4.That the third and fifth defendants have liberty to apply to a Judge of the District Court to apportion liability between them.
5.That, subject to the order of the District Court of South Australia not set aside by paragraph 3, the question of the costs of the action including the costs of the contribution proceedings be remitted to the trial Judge for determination upon notice to the third and fifth defendants.
6.That there be no order as to the costs of the appeal or the cross-appeal.