Capaz Pty Ltd v Cupples

[1993] QCA 80

IN THE COURT OF APPEAL	[1993] QCA 080
SUPREME COURT OF QUEENSLAND

Appeal No. 228 of 1992

Brisbane

[Capaz Pty Limited v Cupples]

BETWEEN:

CAPAZ PTY LIMITED

(Defendant) Appellant

- and -

SANDRA MARGARET CUPPLES

(Plaintiff) Respondent

DAVIES J.A.
MCPHERSON J.A.

DERRINGTON J.A.

Judgment delivered 19/03/1993
REASONS FOR JUDGMENT - THE COURT

APPEAL ALLOWED WITH COSTS. JUDGMENT FOR PLAINTIFF SET ASIDE. ORDER THAT THERE BE A NEW TRIAL LIMITED TO DAMAGES.

FURTHER ORDER THAT THE COSTS OF THE NEW TRIAL WITH RESPECT TO DAMAGES BE RESERVED TO JUDGE AT THAT TRIAL. FURTHER ORDER THAT THE DEFENDANT PAY THE PLAINTIFF'S COSTS OF AND INCIDENTAL TO THE ACTION INCURRED TO AND INCLUDING 13 NOVEMBER 1992. RESPONDENT TO HAVE INDEMNITY CERTIFICATE UNDER APPEAL COSTS FUND ACT 1973.

CATCHWORDS: COURTS AND JUDGES - Judges - Duty to give

statement of reasons for decision.

DAMAGES - APPEAL - Measure of - deficient statement of reasons by trial judge - whether damages excessive.

Counsel:	R. Stenson for the Appellant S. Jones Q.C. with him B.A. Harrison for the Respondent
Solicitors:	Barry Beaverson and Stenson for the Appellant J. Hamilton & Associates for the Respondent
Hearing Date(s):	11 March 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 228 of 1992

Brisbane

Before Mr Justice Davies

Mr Justice McPherson

Mr Justice Derrington

[Capaz Pty Limited v Cupples]

BETWEEN:

CAPAZ PTY LIMITED

(Defendant) Appellant

- and -

SANDRA MARGARET CUPPLES

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19/03/1993

This is an appeal against the amount of damages awarded by a District Court judge in an action for personal injuries. The grounds, as outlined in the notice of appeal and in the outline of argument, asserted that the amounts assessed in respect of pain, suffering and loss of amenities, and in respect of future economic loss, were manifestly excessive.

The appellant who was the defendant in the action sought, in lieu of the judgment given below, judgment for the respondent for some lesser sum to be assessed by this Court. During the course of argument the appellant's counsel made a number of criticisms of the adequacy of the reasons given by the learned trial judge for his assessment of damages, in particular under the above two heads. When it was pointed out to him that this was not a ground of appeal and that the appellant was not seeking a new trial, he simply acknowledged those facts. However, before the completion of his argument, he indicated that he sought a new trial and leave to add the following further ground of appeal:

"That the learned trial judge erred in failing to give any or any sufficient reason for his award of future economic loss."

The respondent, whilst not consenting to the amendment, did not oppose it. We granted leave to amend as requested and the appeal proceeded on that basis.

The principle relevant to that ground of appeal is not in doubt. It was stated in the following terms by Asprey J.A. in Pettitt v. Dunkley [1971] 1 N.S.W.L.R. 376 at 382:

"In my respectful opinion the authorities to which I have referred and the other decisions which are therein mentioned establish that where in a trial without a jury there are real and relevant issues of fact which are necessarily posed for judicial decision, or where there are substantial principles of law relevant to the determination of the case dependent for their application upon findings of fact in contention between the parties, and the mere recording of a verdict for one side or the other leaves an appellate tribunal in doubt as to how those various factual issues or principles have been resolved, then, in the absence of some strong compelling reason, the case is such that the judge's findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose. If he decides in such a case not to do so, he has made an error in that he has not properly fulfilled the function which the law calls upon him as a judicial person to exercise and such a decision on his part constitutes an error of law."

The basis of this principle was stated by McHugh J.A. in Soulemezis v. Dudley (Holdings) P/L (1987) 10 N.S.W.L.R. 247 at 278 ff. See also Fidler v. Green (Court of Appeal, No. 235 of 1992, unreported, judgment delivered on 12 March 1993) and the authorities cited there.

In the present case the learned District Court judge allowed $115,000.00 for future economic loss, which he described as a global award including a sum for a possible future operation, for future pharmaceuticals and for future home help and appliances. It is necessary to say something of the facts upon which it can be seen his Honour arrived at that amount.

The respondent was born on 20 August 1954. She suffered her injury on 30 September 1986 when she was 32 years of age. She was then working as a process worker, which was light labouring type work, in a wooden furniture making business.

She is now 38. She is separated from her husband and has a two year old child. His Honour found that her injuries were a musculo-ligamentous strain, a disc injury at L5/S1, and a disc injury at L4/5 which aggravated a mild pre-existing degeneration. He held that due to her efforts at rehabilitation the respondent had overcome her musculo- ligamentous strain but that her difficulties at L5/S1 and L4/5 remained, both playing an equal part in her present condition. He thought that any pre-existing degeneration at L4/5 would not have manifested itself by any debilitating pain for many years and, it would seem, not at all in her working life. After referring to activities which the respondent could perform adequately such as "shuffle- running", jumping on a trampoline, using a push-pull machine from a seated position which exercised her shoulders and upper limbs and operating a rowing machine with a gliding seat which exercised her lower limbs (the respondent had been secretly filmed performing these activities) his Honour then made the following further findings of fact:

"I accept her evidence that she has much greater difficulty with bending and lifting weights. Like so many others similarly afflicted she needs to keep her back as erect as possible when doing most things.

When it comes to bodily manoeuvres which involve bending, stooping, applying forward pressure with the upper limbs raised and the like which throw pressure on the lower spine, she experiences pain.

She experiences pain day and night in certain positions and she finds she has to move reasonably frequently in order to relieve that pain.

The plaintiff is conscious of pain and discomfort in her back most of the time and this will never improve. She will always need to use various support mechanisms and this need will be reflected in the award for economic loss. The plaintiff needs constant medication and will always need it.

Eventually she is going to need surgery which will provide no more than temporary relief. The plaintiff is headed for a very painful old age.

Despite all her efforts there are some features of her daily life at home, such as hanging out wet washing, cleaning high places, vacuuming and so forth, which cause her pain. Of course she should not try it. The plaintiff will always need help in the house. She would be similarly restricted in any physical movement of that kind during the course of any future employment.

Since she has always worked at jobs which require the use of her full physique the plaintiff is not qualified to perform full-time sedentary employment even if she could find a job in that area. If she were to be retrained and did find an employer willing to put her on, I doubt whether he (sic) back would allow her to work full-time. At her age and in her condition, the plaintiff is at a serious disadvantage on the open labour market."

We think it impossible to determine from this how his Honour arrived at the sum of $115,000.00. It is not even possible to determine how much of this was for the specific matters which he mentioned - possible future operation, future pharmaceuticals, future home help and appliances. Mr Jones Q.C., who appeared with Mr Harrison for the respondent, endeavoured to show that these amounts were specifically ascertainable from the evidence but we think that that attempt failed. To take perhaps the most specifically ascertainable of these as an example, it is true that evidence was given that the cost of operation would be approximately $7,450.00 and that the respondent would be incapacitated for about a year. It is also true that one could calculate from the exhibits an approximate total net loss for this incapacity on the assumption that, but for it, she would have continued in the employment in which she was employed at the time of her accident. But his Honour failed to say when he thought it was most likely that this operation would take place. If it were delayed for five years we were told that the present value of the cost of operation and that loss of earning capacity would be $17,500.00. But as Mr Jones frankly acknowledged, this sum would decrease substantially if the operation were delayed further. Moreover, there is no indication of what his Honour thought was the likelihood that, after the birth of her child, the respondent would, in any event, have continued to work or to work full time. Similar uncertainties make it impossible to determine, even approximately, how much his Honour has allowed for some of these other specific items.

The uncertainty increases when one comes to the major component of the total sum of $115,000.00, loss of earning capacity. Nothing which his Honour said indicated what sum his Honour arrived at for this or how he arrived at it.

Various possibilities were suggested in argument but these were no more than guesses. His Honour did not indicate whether he thought, at the time of trial, the respondent was fit for employment and, if so, what sort of work she could do. Nor did he indicate whether he thought she could do work on a full-time or only on a part-time basis. He did not indicate over what period he thought she would have been likely to work but for the accident, or for what period she is now likely to work. He did not indicate whether he thought her prospects of obtaining employment would improve with time, or worsen.

We are far from suggesting damages for loss of earning capacity are capable of precise mathematical calculation. Nor do we even suggest that all of the findings of the kind to which we have just referred should have been made. But the parties are entitled to be told why, in this case, the amount of $115,000.00 was awarded for future economic loss.

And in the absence of some statement of this by the trial judge, the appellant was, in effect, deprived of its right of appeal. Because it is impossible to say how his Honour arrived at this sum, it is impossible, assuming the sum is not on its face absurdly high, to say that it is too high.

It is most unfortunate that, whatever order we make for costs, both parties will incur additional cost and trouble if a new trial is granted. Nevertheless because his Honour has failed to state any reasons for his conclusion, we have no alternative but to grant one.

We therefore propose to allow the appeal with costs, to set aside the judgment below, and to order a new trial limited to damages. We consider that the respondent should be granted an indemnity certificate under s. 15 of the Appeal Costs Fund Act 1973.

Fairly disposing of the costs so far incurred in the action poses some difficulties. Setting aside judgment in favour of the respondent plaintiff will take with it the order awarding to her the costs of the action. That is not a satisfactory outcome because the plaintiff succeeded completely in the action. What now remains is for damages to be re-assessed, which is a state of affairs that neither party has brought about.

We consider that the demands of justice will best be served if the appellant defendant is ordered to pay the respondent plaintiff's costs of and incidental to the action incurred to and including the date on which judgment was entered, which was 13 November 1992. The costs of the new trial with respect to damages should be reserved to the judge at that trial. Depending on the order that is then made, the indemnity certificate will operate on those costs to the extent specified in s. 16 of the Act. This accords substantially with the submission made by the appellant defendant on this aspect of the matter.