Dodge v Matcham

[1988] TASSC 30

[1988] TASSC 30

CITATION:             Dodge v Matcham [1988] TASSC 30; A19/1988

PARTIES:  DODGE
  v
  MATCHAM

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 188/1987
DELIVERED ON:  26 May 1988
JUDGMENT OF:  Cosgrove, Cox and Wright JJ

Judgment Number:  A19/1988
Number of paragraphs:  9

Serial No 19/1988
List "A"
File No FCA 188/1987

DODGE v MATCHAM

REASONS FOR JUDGMENT  FULL COURT

COSGROVE J
COX J
WRIGHT J
26 May 1988

ORDERS OF THE COURT

1. Appeal dismissed.

2. Cross–appeal dismissed.

Serial No 191988
List "A
File No. FCA 1881987

DODGE v MATCHAM

REASONS FOR JUDGMENT  FULL COURT

COSGROVE J
26 May 1988

1. The assessment of an appropriate award of damages for a tort involves many processes which are subjective, if not downright speculative. Take, for example, compensation for loss of earning capacity. This head of damages is often presented as involving no more than a few findings of fact and a mathematical calculation. It is, we are told, one of the simpler processes involved in assessment. But, in truth, it is never simple and often involves the making and balancing of a number of forecasts of a speculative nature, the accuracy of which is at best doubtful. Sometimes it involves the making of several forecasts about the same thing followed by an endeavour to select a mean or a probability among them.

1. In this case, it was necessary for the trial judge to quantify in money terms the plaintiff's loss of earning capacity attributable to the injuries sustained by him. In order to do this, the judge had to make some estimate of the income which the plaintiff would have generated in the remainder of his working life had he not been injured, and to set that against an estimate of the income he will in fact generate during that time. It is a fact that the plaintiff has been in secure and steady employment with the one employer for most of his working life to date. But, in forecasting the future, his Honour had to bear in mind that a society which was relatively static in terms of residence and employment when his Honour (and most of us) were young, is now very mobile. As a result, forecasting of future employment is less reliable. Further, employees and organisations of employees have bargained for and achieved employment conditions (including superannuation schemes) which offer positive incentives for retirement at a time when the worker's capacity for, and desire to work is still strong and relatively unaffected by the aging process. This creates an added future pressure in favour of mobility. This tendency to mobility means that a judge assessing the value of lost earning capacity may envisage a number of alternative possibilities as to the future employment of the plaintiff had he not been injured. And, of course, the same alternatives appear in any forecast of his future employment as he now is. It may be, and often is, necessary to make a number of forecasts on either side of the likely earnings table involving prognostications as to periods in varying employment, and earnings therefrom. When all that is done, and the various uncertainties laid bare, a judgment must be made as to what is a fair and adequate compensation for the injury–caused loss of earning capacity, using, as best one can, the 3% tables, and making any appropriate discounts. In doing so, a judge must and should be greatly influenced by his assessment of the plaintiff and other witnesses whom he has the opportunity of examining during the trial.

1. The task of assessing any reduction in value of the plaintiff's superannuation opportunities calls for a similar approach although perhaps a less complex one. The assessment of a fair award in respect of pain, suffering and loss of amenities is par excellence a matter of judgment as opposed to mathematical calculation.

1. I have said all this in order to demonstrate in the context of this case the relevance of the following comments made by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616–617 and cited with approval in Miller v Jennings (1954) 92 CLR 190 at 195–196 and Gamser v Nominal Defendant (1977) 136 CLR 145 at 148–149:

"There is an obvious difference between cases tried with a jury and cases tried by a judge alone. Where the verdict is that of a jury, it will only be set aside if the appellate court is satisfied that the verdict on damages is such that it is out of all proportion to the circumstances of the case: Mechanical & General Inventions Co Ltd v Austin [1935] AC 346. Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages. It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer LJ in Flint v Lovell [1935] 1 KB 354, at p360. In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.

1. There is, in my opinion, no ground for characterizing his Honour's award in this case or any part of it as wholly erroneous. I would dismiss both the appeal and the cross–appeal.

Serial No 191988
List "A
File No. FCA 1881987

DODGE v MATCHAM

REASONS FOR JUDGMENT  FULL COURT

COX J
26 May 1988

1. Like my brethren Cosgrove and Wright JJ, whose reasons for judgment I have had the advantage of reading, I can detect no error in the award of the learned trial judge. I concur therefore in their view that both appeal and cross appeal should be dismissed.

Serial No 191988
List "A
File No. FCA 1881987

DODGE v MATCHAM

REASONS FOR JUDGMENT  FULL COURT

WRIGHT J
26 May 1988

1. When the Court reserved its decision in this appeal I was attracted to the respondent's argument in support of the cross–appeal viz that the trial judge had unduly discounted the amount allowed in respect of loss of future superannuation for unspecified contingencies. Counsel for the respondent pointed out that the amount claimed under this head when recalculated to take account of the twenty three and a half years assumed balance of his client's working life, amounted to $20,162.73. Counsel also pointed out that under the provisions of the Ambulance Service Regulations governing the Superannuation Fund, the respondent would become entitled to payment of superannuation in the event of death or disablement prior to the retirement age of 65 years. He argued therefore that the contingencies that could properly be taken into account in assessing this loss must not include any reduction for such components as premature death or disablement. His logic to this point is unassailable. However, in my opinion, his argument founders at the next step which was based upon the proposition that the learned trial judge‘s award for future economic loss allowed the respondent no capacity to invest in an alternative fund to minimize his superannuation loss.

1. It has not been demonstrated to my satisfaction that his Honour erred in assessing the respondent's future economic loss in the way that he did. His Honour allowed a sum of $60,000.00 for future economic loss, the original amount claimed by the respondent being $86,700.00 odd. In addition his Honour allowed $12,000.00 for the loss claimed in respect of future superannuation. There is no reason to suppose, or to assume that his Honour supposed, that the sum of $60,000.00 was totally devoid of any component representing monies which the respondent would have been required to contribute to the Superannuation Fund as a condition of his employment during the remainder of his working life, and which are therefore now available to him to invest in an alternative scheme.

1. For these reasons, it appears to me, that the respondent's argument that the trial judge discounted the superannuation claim by some 40% for "contingencies" only, cannot be sustained. Perhaps, it is regrettable that his Honour did not fully specify the processes that led him to an assessment of $12,000.00 under this head of the claim but bearing in mind the observations of my learned brother Cosgrove J in his reasons for judgment, which I generally subscribe to, I remain unpersuaded that the learned trial judge erred in his assessment of the respondent's damages. I therefore concur in the proposed order that both the appeal and the cross–appeal be dismissed.