Commonwealth of Australia v Stankowski - [2005] NSWCA 106

CITATION:
COMMONWEALTH OF AUSTRALIA v STANKOWSKI [2005] NSWCA 106

HEARING DATE(S):
1 February 2005, 2 February 2005, 3 February 2005

JUDGMENT DATE:

13 April 2005

JUDGMENT OF:
Sheller JA at 1; Hodgson JA at 142; Bryson JA at 153

DECISION:
1 Appeal allowed; 2 Set aside the verdict and judgment for the plaintiff in the sum of $377,851.14 and in lieu thereof order that there be a verdict and judgment for the plaintiff in the sum of $369,956.90; 3 Otherwise confirm the orders of O'Keefe J in relation to the payment of costs of the trial and interest on costs; 4 The appellant to pay the respondent's costs of the appeal; 5 Cross-appeal dismissed with costs.

CATCHWORDS:
Negligence - post traumatic stress disorder - whether trial Judge failed to use or palpably misused his advantage - whether findings were inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable - Evidence - expert opinion evidence - whether histories assumed by experts must be sufficiently like those established to render the opinion of the expert of any value - Damages - whether general damages manifestly excessive - damages for loss of chance - duplication of damages - Procedure - discharge of jury - whether apprehended bias - whether procedural unfairness suffered - Costs - interest on costs - interest on costs to accrue from 21 days of the filing or lodgement for assessment by the plaintiff of the bill of costs - whether award permitted by section 95(3) of the Supreme Court Act 1970.

LEGISLATION CITED:
Evidence Act 1995
Legal Profession Act 1987
Migration Act 1958

CASES CITED:
Brittain v The Commonwealth of Australia [2004] NSWCA 83
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Minister Administering the Environmental Planning qnd Assessment Act 1979 v Carson (1994) 35 NSWLR 342
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Norris v Blake (No 2) (1997) 41 NSWLR 49
Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844
Re Bank Employees Union; ex parte Citicorp Australia Ltd (1989) 167 CLR 513
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 90
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Todorovic v Waller (1981) 150 CLR 402
Webb v The Queen (1994) 181 CLR 41

PARTIES:
Commonwealth of Australia - Appellant
Stephen Stankowski - Respondent

FILE NUMBER(S):
CA 40304/04

COUNSEL:
R J Burbidge QC/G T Johnston - Appellant
A G Melick SC/K Sant - Respondent

SOLICITORS:
Australian Government Solicitor - Appellant
James Taylor & Co - Respondent

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
21240/95

LOWER COURT JUDICIAL OFFICER:
O'Keefe J

CA 40304/04
SC 21240/95
SHELLER JA
HODGSON JA
BRYSON JA

COMMONWEALTH OF AUSTRALIA v STANKOWSKI

This appeal is from a judgment of 22 March 2004,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 106
Decision Date: 13 April 2005

CaseChat Overview and Summary

The Commonwealth of Australia appealed to the Court of Appeal of New South Wales against a judgment of O'Keefe J, who had awarded damages to the respondent, Mr. Stankowski, for negligence. The dispute concerned Mr. Stankowski's claim for post-traumatic stress disorder arising from his employment with the appellant.

The Court of Appeal was required to determine whether the trial judge had failed to properly use or had palpably misused his advantage in assessing the evidence, particularly concerning the findings of fact and the assessment of damages. Key issues included whether the trial judge's findings were inconsistent with incontrovertibly established facts or were glaringly improbable, and whether the expert opinion evidence relied upon was of value given the histories assumed by the experts. The court also considered whether the general damages awarded were manifestly excessive, whether damages for loss of chance and other damages were duplicated, and whether there had been procedural unfairness or apprehended bias leading to the discharge of the jury.

The Court of Appeal found that while the trial judge had not erred in his findings of fact or in his assessment of the expert evidence, there had been an error in the calculation of damages, leading to a duplication of an amount awarded for loss of earning capacity. The court reasoned that this duplication resulted in an excessive award of general damages. The court also addressed the issue of interest on costs, confirming the trial judge's order in that regard.

Consequently, the appeal was allowed in part, with the verdict and judgment for the plaintiff being set aside and a reduced sum substituted. The orders relating to the payment of costs of the trial and interest on costs were otherwise confirmed. The appellant was ordered to pay the respondent's costs of the appeal, and the respondent's cross-appeal was dismissed with costs.

Orders

Orders of the court

1 Appeal allowed; 2 Set aside the verdict and judgment for the plaintiff in the sum of $377,851.14 and in lieu thereof order that there be a verdict and judgment for the plaintiff in the sum of $369,956.90; 3 Otherwise confirm the orders of O'Keefe J in relation to the payment of costs of the trial and interest on costs; 4 The appellant to pay the respondent's costs of the appeal; 5 Cross-appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	COMMONWEALTH OF AUSTRALIA v STANKOWSKI [2005] NSWCA 106
HEARING DATE(S):	1 February 2005, 2 February 2005, 3 February 2005
JUDGMENT DATE:	13 April 2005
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 142; Bryson JA at 153
DECISION:	1 Appeal allowed; 2 Set aside the verdict and judgment for the plaintiff in the sum of $377,851.14 and in lieu thereof order that there be a verdict and judgment for the plaintiff in the sum of $369,956.90; 3 Otherwise confirm the orders of O'Keefe J in relation to the payment of costs of the trial and interest on costs; 4 The appellant to pay the respondent's costs of the appeal; 5 Cross-appeal dismissed with costs.

CATCHWORDS:	Negligence - post traumatic stress disorder - whether trial Judge failed to use or palpably misused his advantage - whether findings were inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable - Evidence - expert opinion evidence - whether histories assumed by experts must be sufficiently like those established to render the opinion of the expert of any value - Damages - whether general damages manifestly excessive - damages for loss of chance - duplication of damages - Procedure - discharge of jury - whether apprehended bias - whether procedural unfairness suffered - Costs - interest on costs - interest on costs to accrue from 21 days of the filing or lodgement for assessment by the plaintiff of the bill of costs - whether award permitted by section 95(3) of the Supreme Court Act 1970.
LEGISLATION CITED:	Evidence Act 1995 Legal Profession Act 1987 Migration Act 1958
CASES CITED:	Brittain v The Commonwealth of Australia [2004] NSWCA 83 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Minister Administering the Environmental Planning qnd Assessment Act 1979 v Carson (1994) 35 NSWLR 342 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Norris v Blake (No 2) (1997) 41 NSWLR 49 Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844 Re Bank Employees Union; ex parte Citicorp Australia Ltd (1989) 167 CLR 513 SBBA v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 90 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Todorovic v Waller (1981) 150 CLR 402 Webb v The Queen (1994) 181 CLR 41
PARTIES:	Commonwealth of Australia - Appellant Stephen Stankowski - Respondent
FILE NUMBER(S):	CA 40304/04
COUNSEL:	R J Burbidge QC/G T Johnston - Appellant A G Melick SC/K Sant - Respondent
SOLICITORS:	Australian Government Solicitor - Appellant James Taylor & Co - Respondent

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	21240/95
LOWER COURT JUDICIAL OFFICER:	O'Keefe J