Gerrard v Slamar - [2004] WASCA 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: GERRARD & ANOR -v- SLAMAR [2004] WASCA 253

CORAM: STEYTLER J
EM HEENAN J
LE MIERE J

HEARD: 21 APRIL 2004

DELIVERED : 12 NOVEMBER 2004

FILE NO/S: FUL 117 of 2002

BETWEEN: JOHN WILLIAM GERRARD
LINDA ROSE GERRARD
Appellants (Defendants)
AND
TROY RUDOLPH HERBERT SLAMAR
Respondent (Plaintiff)

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HH JACKSON DCJ
Citation  :SLAMAR -v- GERRARD & ANOR [2002] WADC 145
File No  :CIV 1709 of 1995

Catchwords:

Appeal - Bailment - Contract for repair of motor truck - Vehicle submitted for engine overhaul and rebuild in partially dismantled condition - Appellants' bailees for reward - Vehicle extensively damaged in test drive due to steering column defect - Steering mechanism dismantled when vehicle delivered for repair - Repairers failing to discover partially dismantled steering mechanism - Dismantled steering mechanism capable of identification and correction by exercise of reasonable care - Vehicle written off because of damage - Damages for loss of vehicle - Damages for loss of revenue from use of vehicle by respondent - Assessment of damages - Extensive questioning by Judge during course of trial - Counterclaim for costs of parts and repairs - Notice of appeal not raising grounds to support counterclaim

Legislation:

Nil

Result:

Appeal against liability on claim dismissed
Appeal against assessment of damages allowed in part
Judgment varied
Appeal against dismissal of counterclaim stood over for 30 days pending further written submissions from parties

Category: B

Representation:

Counsel:

Appellants (Defendants) : Mr K E Yin
Respondent (Plaintiff) : Mr J C Curthoys

Solicitors:

Appellants (Defendants) : Michael Rennie
Respondent (Plaintiff) : Stables Scott

Case(s) referred to in judgment(s):

Atkinson v Hastings Deering (Queensland) Pty Ltd (1985) 8 FCR 481
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Dearman v Dearman (1908) 7 CLR 549
Fink v Fink (1946) 74 CLR 127
Green v Sommerville (1979) 141 CLR 594
Helicopter Sales (Australia) Pty Ltd v Rotor‑Work Pty Ltd (1974) 132 CLR 1
Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
Johnson v Johnson (2000) 201 CLR 488
Jones v National Coal Board [1957] 2 QB 55
Jones v R (1989) 166 CLR 409
Kaycliff v Australian Broadcasting Tribunal (1989) 90 ALR 310
Motor Accidents Board (Victoria) v Coutts [1984] VR 790
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VLR 386
R v Watson; ex parte Armstrong (1976) 136 CLR 248
Rosser v Marine Ministerial Holding Corporation [1999] NSWCA 72
Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533
Sheppard v Swan [2004] WASCA 215
State of Victoria v Bacon [1998] 4 VR 269
Steele v Tardiani (1946) 72 CLR 386
Steven v Bromley & Son [1919] 2 KB 722
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Rep 81‑292
University of Woollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481
Water Board v Moustakas (1988) 180 CLR 491

Case(s) also cited:

Astley v Austrust (1999) 197 CLR 1
Sweeney v Wallace [2002] WASCA 248

STEYTLER J: I have had the advantage of reading the judgment of E M Heenan J. I agree with it and with the conclusions arrived at by him. There is nothing I wish to add.
EM HEENAN J: This is an appeal from the judgment of his Honour HH Jackson DCJ given in the District Court of Western Australia on 18 July 2002 by which his Honour awarded damages of $42,238.30 to the respondent (plaintiff), dismissed the appellants' counterclaim and ordered the appellants to pay the respondent's costs of the action and of the counterclaim.
The respondent was a truck driver whose business involved the transportation of prefabricated houses by low‑loaders drawn by prime movers to various parts of this State. One of his prime movers used in this business was a 1981 Ford LNT 9000 registered number 7IP 647 known as a "Louisville". In June 1994 the vehicle developed engine problems and it was towed to a contractor's depot in Kewdale where some work was done investigating the cause of the trouble and involving the partial dismantling of the engine, the steering mechanism and other mechanical systems. As a result of this initial work it became apparent that the vehicle needed a complete overhaul and an engine rebuild so the vehicle, in its partially dismantled condition, was towed to the appellants' working premises, known as Diesel Repair Repower WA for this to be done.
It was delivered to the appellants (defendants) on 2 July 1994 and some necessary engine parts which the respondent had purchased were delivered later on the same day. The appellants gave the respondent an estimate that the necessary work would be done within about two and a half weeks. The respondent paid the appellants $2,600 on 2 July 1994 as a deposit on account of the work to be done and, later, on 20 August 1994, paid a further $3,500 on account for engine parts supplied and work and labour. At the date of delivery of the Louisville prime mover to the appellants the steering mechanism remained partially dismantled. To a degree this was obvious upon even the most cursory inspection but the full extent of the dismantling of the steering column was not obvious without closer inspection and this was not drawn to the attention of the appellants by or on behalf of the respondent.
After carrying out most, if not all, of the work needed to overhaul and rebuild the engine on the Louisville prime mover the appellants decided that the vehicle should be taken for a test run. For this to be done, obviously, it was necessary for the vehicle to be reassembled and put into

proper working condition. The appellants' staff purported to do this but, because none of them had actually worked on the steering column or its mechanism, no attention was given to whether or not the steering column had been properly connected or was in safe working condition. In fact the steering column was not properly connected because lower splines had not been properly assembled and there was an incorrect bolt fitted to the universal joint of the steering gear box which, to any experienced mechanic, should have been a signal that the steering mechanism had not been properly connected. The uncontested evidence at the trial was that if this incorrect bolt in the steering mechanism had been seen, the workmen would have checked both ends of the steering shaft and, in doing so, would have discovered that it had not been properly reconnected at the lower end. Unfortunately that was not done.

During the course of the test drive the steering mechanism on the Louisville prime mover failed and the vehicle crashed into a culvert causing extensive damage resulting in it being written‑off. There is no doubt that the accident was caused by the incomplete reconnection of the steering mechanism leading to failure of the steering controls while the vehicle was being driven.

Trial of action and counterclaim

In these circumstances the respondent brought an action for damages against the appellants, claiming the value of the vehicle (less salvage recovered), loss of profits from its use and interest. The claim for loss of profits from the use of the vehicle also asserted that the appellants were in breach of contract by failing to complete the repairs promptly, within the two and a half week period allegedly agreed, as well as claiming for loss of profits following the destruction of the vehicle in the accident of 8 September 1994. The learned trial Judge found, and this finding is not contested on the appeal, that although the appellants had given an estimate of two and a half weeks for the necessary works and repairs they had never agreed or undertaken to complete the work within that time or within any other fixed period and that, therefore, their obligation was to do the work within a reasonable period. His Honour did not conclude that there had been any breach of that obligation and, therefore, assessed damages for loss of the profitable use of the vehicle only from 8 September 1994, the day of the damage. Although not expressly addressed, that conclusion obviously implies that, had the vehicle not been irreparably damaged in the accident, it would, or should, have been available for return to the respondent in full working order on 8 September 1994. This implicit conclusion is of some significance in relation to the counterclaim because it also implies that all, or most, of the remedial work on the Louisville prime mover which the appellants had undertaken to perform was complete, or would have been completed, by that date.
The respondent pleaded that there was an express or implied term in the agreement for the delivery of the vehicle to the appellants for repair, that the appellants would carry out the works in a proper and workmanlike manner and that upon completion of the works "the vehicle would be in top working condition". Additionally, and alternatively, the respondent pleaded that the appellants were bailees for reward of the vehicle and, further, that they owed the respondent a duty of care to ensure that the works were carried out in a proper and workmanlike manner. The case was conducted on the basis that the prime mover had been irreparably damaged while in the possession of the appellants for the performance of the agreed repair work and that being unable to return the vehicle in undamaged condition, the appellants would be liable, for loss or damage, resulting to the respondent unless they could show (the onus of proof being on them) that the loss or damage of the vehicle had occurred without negligence on their part or, what is the same thing, that they had actually exercised all reasonable care for the vehicle whilst it was in their possession during the course of the bailment.
The appellants counterclaimed for $7,711.87 plus interest for the balance of their charges for the repair work, parts supplied and labour undertaken on the overhaul and engine rebuild of the Louisville, after giving credit for the $6,100 which had been paid by the respondent on account of this work. There was no issue on the trial of the counterclaim about the performance of this work or the charges rendered for it. The learned trial Judge found that, had it not been for the liability of the appellants in damages for the destruction of the vehicle the counterclaim would have been allowed.
The learned trial Judge found that the appellants had failed to discharge the onus of disproving negligence on their part in the care of the Louisville prime mover during the time that it was in their possession. The basis for this finding was his Honour's conclusion that, despite the facts that the steering mechanism had not been dismantled by the appellants or their employees, and that they had not been instructed to work on the steering mechanism of the vehicle, it was negligent on their part to fail to ascertain the partially dismantled and disconnected condition of the steering mechanism when they reassembled the engine and other parts of the vehicle upon completion of the engine overhaul and reconditioning and prior to the test drive.
The learned trial Judge also found that the damage to the prime mover in the accident resulted in it being written‑off, that its value at the time of the accident was $32,000 including the benefit of the work undertaken and parts supplied by the appellants in the course of the overhaul, and that the salvage value of the wreck was $13,000. His Honour accepted that the respondent obtained a replacement vehicle on 8 December 1994 and was, therefore, without a comparable vehicle for use in his business for the three month period from the date of the accident until then. His Honour examined the financial records of the respondent's business but experienced difficulty in making any finding about the extent of loss of work or profit due to the loss of the use of the truck. However his Honour was satisfied that there was a reduction in revenue over the period which could be derived from an examination of the respondent's income tax returns due to the loss of this vehicle and that this should be assessed at $10,000. Consequently, the damages which his Honour awarded were calculated as follows:
The value of the Louisville prime mover
when irreparably damaged on
8 September 1994  $32,000.00
Less proceeds of salvage of wreck
sold for spare parts  ($13,000.00)
$19,000.00
Plus loss of use of the truck from
8 September to 8 December 1994  $10,000.00
$29,000.00
Interest at 6 per cent per annum from
8 December 1994 until 18 July 2002  $13,238.30
$42,238.30
As already stated, the learned trial Judge concluded that the value of the prime mover at the date of its destruction included and reflected the work which had been undertaken by the appellants in overhauling and reconditioning the engine. It was his Honour's finding that the $32,000 figure for the value of the truck at that date included "the parts supplied by each of the parties and the added value supplied by the appellants' (defendants') labour". In those circumstances, the respondent had the benefit of the work which he had instructed the appellants to perform on the vehicle, from the manner in which the learned trial Judge treated the vehicle as being worth $32,000 in full working order at the date of the accident.

Issues on appeal

By their notice of appeal the appellants contended that the whole of the judgment entered against them for $42,238.30 should be set aside and that the respondent's claim should be dismissed, and that they should have judgment on their counterclaim against the respondent for $7,711.87 together with interest under s 32 of the Supreme Court Act from 9 September 1994 at the rates prevailing from time to time upon judgments. Alternatively, they contended that if the judgment in favour of the respondent was not wholly set aside it should be reduced on the grounds of alleged contributory negligence, the extent of which should be determined by this Court or, failing that, there should be a remission of the action to the District Court for the limited purpose of determining the extent of the alleged contributory negligence and reduction of the damages by apportionment.
The ground of appeal raising the issue of alleged contributory negligence was, however, abandoned at the commencement of the hearing of the appeal and it is therefore unnecessary to address that issue and, in particular, whether damages awarded to a bailor against a bailee are subject to apportionment for contributory negligence under s 4(1) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 when, as in this case, the amendments to that Act by the introduction of s 3A inserted by Act No 17 of 2003 did not apply, or for that matter even in the light of that amendment. Those are questions which may certainly be important in another case but need not be addressed on this occasion (see generally N E Palmer, "Bailment" 2nd ed (1991) Law Book Co at 69 ‑ 71).
Another ground of appeal abandoned at the commencement of the hearing was ground 6 which raised an allegation of actual bias on the part of the learned trial Judge.
The appeal proceeded on four grounds which, in summary, are:
1.the learned trial Judge erred in law in holding that the respondents had not discharged the onus of disproving negligence on their part as bailees;
(Lengthy particulars were given to support this contention.)
3.the learned trial Judge erred in law by including in the damages awarded an amount of $10,000 for three months loss of the use of the truck;
(Particulars of this contention were set out.)
4.the learned trial Judge erred in law in including the sum of $10,000 in the award of damages in favour of the respondent where he had first found that it was impossible to calculate the loss of work or loss of profit from the loss of the use of the truck but then proceeded to assess the alleged loss of profit based on the respondent's taxation returns which were insufficient to support that assessment;
5.the learned trial Judge interfered excessively in the trial to such an extent that the appellants' case was severely compromised resulting in the appellants failing to obtain a fair trial due to excessive questions and remarks made during the examination of witnesses on up to 120 occasions.

Liability of a bailee for reward

The respondent's statement of claim, as already noted, advanced three sources of obligation upon the appellants for the care of the prime mover during the time when it was in the appellants' possession. First, the respondent alleged that there was an implied term of the contract engaging the appellants to repair the vehicle, which obliged them to carry out the works in a proper and workmanlike manner (par 6 of the statement of claim). Second, the respondent alleged that the appellants owed him a duty of care to ensure that the works were carried out in a proper and workmanlike manner on the basis that the appellants took delivery of the vehicle for the purpose of carrying out the specified works and that they knew or ought to have known that the respondent relied upon them to undertake the works in a proper and workmanlike manner. Third, by par 8 of the statement of claim, the respondent expressly alleged that the appellants were at all material times bailees of the vehicle for reward. However, nothing in the course of the trial or during the hearing of the appeal, arose which would necessitate any separate examination of the obligations said to have arisen in these three ways or to consider whether there was any difference in content between them material to this case.
The learned trial Judge disposed of the content of the legal obligation due by the appellants to the respondent on the footing that the appellants were bailees for reward and no challenge has been made to that approach on this appeal. Significantly, the parties have accepted that their respective obligations come within the explanation of the duties and liabilities of a bailee given by Kirby P (as his Honour then was) in Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Rep 81‑292, a decision of the Court of Appeal of New South Wales constituted by Gleeson CJ, Kirby P and Priestley JA reported in (1994) Aust Tort Rep 81‑292. It is only necessary to set out part of the passages in that judgment which were cited by his Honour:
"1.A bailee for reward, such as a bailee for work and labour of the kind performed by the respondent, assumes a duty to take such care of the bailed goods as is reasonable in the circumstances. See Halsbury's Laws of England 4th edition (Bailment) vol 2, para 1562 at 727. It is essential to bailment that, unless forgiven by the law, the bailee should restore the property bailed to its lawful owner. See G W Paton, Bailment in the Common Law, cited by Clarke JA in Brambles Securities Services Ltd v Bi‑Low Pty Ltd (Court of Appeal NSW), unreported 19 June 1992; [1992] NSWJB 60;
2.in the event of loss of goods during the bailment, the onus is upon the bailee to disprove that the loss is the result of any negligence on its part;
...
3.the duty of the bailee is not that of an insurer. Thus, the bailee is not obliged to take every conceivable or possible precaution to prevent loss of the goods. Its duty is simply to act reasonably. It is to take reasonable care such as a person would take in respect of that person's own goods. The duty is stringent so that the responsibility assumed by the bailee cannot, at least without consent, be delegated to another.
...
8.If the bailee, bearing the onus of proof, discharges that onus by establishing that the theft [Tottenham's case involved the loss of bailed good due to theft by a third person] of the bailed goods occurred without negligence on its part, and the evidentiary burden is borne by the bailor to establish the precautions which reasonable could and should have been taken by the bailee to prevent the loss of the goods ... It is then for the bailor to adduce evidence of what those further precautions might have been and from which the decision maker can infer that it was reasonable to expect that they would have been taken having regard to all the circumstances.
9.In many cases of claims against a bailee defences are raised based upon the terms of the contract pursuant to which the goods were deposited. This is not in issue in the present case. But it is pertinent to note that the common law's ordinary expectation that a bailee should restore property to its lawful owner finds reflection in the cases concerned with purported contractual exceptions. A bailee will remain liable as such unless it 'did what was reasonably sufficient' to give the [bailor] notice of the condition 'excluding liability'. ... "
As in Tottenham's case, the claim by the respondent did not involve consideration of any exclusionary provisions alleged to be contained in the contract of bailment or other circumstances limiting or qualifying the liability or duty of the bailee. As the learned trial Judge, correctly in my respectful view, observed at [19] the issue of liability in the present case was essentially fought on the basis of whether the appellants were, or were not, in breach of the bailee's duty of reasonable care.

In this regard it is pertinent to note that the same rules were established by the High Court of Australia in Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 where Menzies J (with whom McTiernan J agreed) said at 233 ‑ 234:
"It is common ground that the defendant was a bailee for reward of the equipment being carried. It was not under an absolute duty to deliver. It was a qualified duty and, to use the language of Starke, Dixon and McTiernan JJ in John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 at 166, 'it would not be broken if the defendants were disabled from delivery through destruction or loss of the goods which reasonable care and skill on their part could not avoid'. To escape liability for non‑delivery the onus of proving that the non‑delivery, however caused, was without fault on its part, rested upon it. A modern statement of the position is to be found in the judgment of Lord Denning MR in Morris v C W Martin & Sons Ltd, as follows [1966] 1 QB 716 at 726:-
'Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show - and the burden is on him to show - that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty.'
These well established rules, which I think should be accepted without qualification or gloss, do not constitute a carrier, such as the defendant, an insurer; he escapes liability if he can show that non‑delivery of goods entrusted to him for carriage was not due to his fault, notwithstanding that he does not show how the loss actually occurred. ... "
Similar questions arose for decision in Helicopter Sales (Australia) Pty Ltd v Rotor‑Work Pty Ltd (1974) 132 CLR 1 which involved the loss of a helicopter flying over Circular Quay, Sydney, when a bolt in the tail rotor blade failed. The failure was due to a machining defect in the bolt during manufacture and the question which arose was whether or not, in the contract for the regular service of this helicopter, which was a contract to do work and supply materials, there was an implied warranty that the materials supplied were of good quality, free from latent defects and reasonably fit for their intended purpose. In that case it was held that in a contract to do work and supply materials, in the absence of special circumstances, there will be implied warranties that the materials were of good quality and free from latent defects and reasonably fit for their intended purpose but, in the particular circumstances of that case, no such warranty should be implied - on this issue see Stephen J at 8 ‑ 9. In my view that decision supports the pleaded case of the respondent that the appellants were under an implied obligation to use reasonable care in performing the engine reconditioning and rebuild and in the performance of all work upon the prime mover while in their possession including, necessarily, the reassembly of the vehicle and its components in a roadworthy condition before embarking upon the road test.
At the trial, and again on this appeal, the appellants have attempted to discharge the onus of proving that the damage to the prime mover occurred without negligence on their part by showing: that neither they nor their staff worked upon the steering shaft; that it was possible, even common, for an engine rebuild and reconditioning to be carried out without dismantling the lower regions of the steering mechanism of such a vehicle; and that it had not been drawn to their attention when the vehicle was delivered for work that this part of the steering mechanism had been partially dismantled.
Counsel for the appellants pointed to the findings of the learned trial Judge (at [58] and [59]) that the steering shaft had been disconnected by a person or persons unknown prior to the delivery of the truck to the appellants and that it was unnecessary to disconnect the steering shaft before reassembling and refitting the engine. The appellants' contention was that because of the adequacy of the actual repairs performed by the appellants there was no room for any finding, whether by inference or otherwise, that they had been negligent in failing to ensure the proper reconnection or reassembly of the steering mechanism when that was not a task which they had any reason to embark upon. However, in my respectful view the learned trial Judge was correct in rejecting that argument at the trial, and in taking the view that the exercise of reasonable care by the appellants, in the reassembly of this vehicle, required an inspection of the state of the steering mechanism and assembly because it was quite foreseeable that the steering shaft could have been disconnected prior to work on the engine. No such inspection or examination was carried out by the appellants or their staff and the evidence showed that had any such inspection been conducted the incorrect bolt at the lower end of the mechanism should have been observed and that would have led on to the discovery that the steering mechanism had not been fully or correctly reassembled.
I consider that the evidence at the trial, and these findings, could only lead to the conclusion that the appellants or their staff had been negligent in failing to examine the state of the steering mechanism when assembling, prior to a road test, a vehicle which had been delivered to them originally in a condition when it could not be driven and where, to an extensive degree, parts of the engine and the steering apparatus had been dismantled in the course of investigations undertaken in another motor workshop. This is not simply a case where there was a failure by a bailee to disprove that the damage to the goods bailed had been caused by their negligence but where the evidence actually did establish negligence on the bailee's part. For this reason I consider that ground 1 of the appeal should be dismissed.

Appeal grounds 3 and 4 - award of $10,000 for damages for the loss of the use of the vehicle

By these grounds of appeal the appellants advance two propositions.
The first is that in view of the finding that there was no term of the contract for the repair of the vehicle providing for the work to be completed within two and a half weeks, there was, accordingly, no basis for awarding damages for the loss of the use of the truck between 8 September and 8 December 1994 in that the learned trial Judge was not prepared to find that there was any breach of an implied term to complete the repair work within a reasonable time. In my view this argument must fail.
In the first place damages were not sought or awarded on the grounds of a failure to complete the work required within a fixed period or within a reasonable period as determined by the court. As already noted, the repair work was largely completed and nothing which occurred in the road test suggested that there was any more work to be done on the engine so that, had it not been for the defect in the steering mechanism and the ensuing accident which this caused, the vehicle would have been ready for delivery to the respondent later on 8 September 1994 or immediately afterwards. This implicit finding by the learned trial Judge has already been noted earlier in these reasons. The occasion for the award of damages for loss of use of the vehicle arose because, due to breach of their duty as bailees, the appellants were not able to return the prime mover to the appellant in a roadworthy condition after 8 September 1994 because of the damage which it suffered while in their possession. Had the evidence revealed that proper performance of the repair work by the appellants would have meant that the prime mover would not have been ready for return to the respondent until sometime after 8 September 1994 then the duration of the period during which the claim for loss of the use of the vehicle could be maintained might well have been shorter but this was simply not the situation in the present case.
The second proposition in these grounds of appeal is that the respondent failed to prove any financial loss arising from being without this prime mover during the period 8 September to 8 December 1994. This inability to prove loss or damage during this period, so it was argued, was due to the unreliable state of the respondent's financial records. The appellants naturally placed considerable reliance on the findings of the learned trial Judge at [68]:
"I accept the honesty of the plaintiff's evidence, but on matters of chronology and the like, and on matters of a financial nature, his accuracy and reliability are suspect and incomplete, and, on a number of matters, difficult to follow. It is impossible to calculate the loss of work, or of profit, from the loss of the use of the truck. In cross‑examination of the plaintiff made this plain."
Despite the apparent conclusiveness of this finding it is nevertheless apparent that the learned trial Judge then embarked on a different approach to the assessment of the alleged claim for the loss of use of the vehicle. His Honour said at [71] to [76]:
"The plaintiff's income tax return show a taxable income of $15,205 in the year 1994 ‑ 1995 after allowing for a depreciation expense of $29,572, presumably for loss of the Louisville in the accident. In addition, he said that, in ignorance, at that time, non‑business expenses were sometimes treated as business deductions. In 1993 ‑ 1994, his taxable income was $36,192. The returns are Exhibit 12 and Exhibit13.
Mr C A Fisher gave evidence, briefly confirming some of that of the plaintiff and essentially that after the Louisville truck went in for repairs, he did further driving for the plaintiff only for a very short period and then drove for Concrete House Transporters which were short of drivers and very busy with work.
On this head, I allow for loss of the use of the truck for a period ... I allow for loss of the truck from the accident for three months, say $10,000."
These passages which I have just cited from the learned trial Judge's reasons were interspersed with further discussion and findings about whether or not it was a term of the contract for the repair of the vehicle that the work would be completed within two and a half weeks, a finding rejecting that allegation and a conclusion that there was an implied term that the work would be done within a reasonable time but, due to lack of evidence, a conclusion that there was no proof of a breach of an obligation to complete the work within such a period. This leaves it rather difficult to identify how his Honour concluded that the respondent had established that he had lost $10,000 over that three month period by being without the Louisville prime mover, especially in the light of the finding that it was impossible to calculate the loss of work or of profit due to the loss of the truck on the basis of the evidence of the plaintiff about the revenues derived from his business and assumed daily or other periodic profits from the conduct of this particular transport operation.
Nevertheless, it is clear that his Honour was satisfied that there was a loss caused by the respondent's inability to use the prime mover in his transport operations so that, despite the difficulties involved, it was necessary for the court to assess, as best it could, the loss from the evidence available. This is consistent with the long established principle that, where it is established that a loss has been incurred caused by the defendants' breach of duty, the court should undertake the task of assessing the damages notwithstanding that this may involve considerable difficulty: Fink v Fink (1946) 74 CLR 127 at 143; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83, 102, 125 and 153; Russell v J Hargreaves & Sons Pty Ltd (1956) 30 ALJR 533 at 534 ‑ 535.
The learned trial Judge referred to the income tax returns for the years ended 30 June 1994 (Exhibit 12) and 30 June 1995 (Exhibit 13) in an attempt to derive some measure of the impact on the respondent's business caused by the loss of the truck. However, there were features of both returns which made comparisons in the drawing of inferences difficult. In this regard the figures in the two income tax returns for those years showed:
Transaction  1993/1994                1994/1995
  Tax Return               Tax Return
Total business income           $144,523                  $179,061
Depreciation expenses           $       218                   $ 29,592
Total business expenses         $108,331                  $163,856
Net income from business      $  36,192                   $ 15,205
Admittedly, this shows that the net business income for the year in which the prime mover was unavailable was significantly less. On the other hand, gross income for the second year was substantially greater than the gross income from the first year and, disregarding the depreciation expense (much larger in the second year) the net income for the second year would have been significantly greater than for the first. His Honour found that higher depreciation was caused by the loss of the Louisville prime mover which, clearly, is a consequence of the accident. Allowing damages for the capital loss of the vehicle at the date of the accident will, however, restore that loss so that making that adjustment one is still no further forward in calculating the loss of income or profit due to the three month loss of one of the income earning vehicles.
It seems to be the case that the respondent's business was increasing, at least in relation to turnover, during the second year and the case which was, in reality, therefore advanced for the respondent was that the income (disregarding depreciation) would have been even greater had the Louisville prime mover been available for work between September and December 1994. Further difficulties in the process of assessment arise from the fact that this Louisville prime mover was not the only vehicle used by the respondent in his business so making any attempt to apportion part of the annual revenue to the productive capacity of this truck in order to estimate a monthly or other periodic contribution to the overall business revenue would be quite arbitrary if not impossible.
These considerations amply demonstrate the observations of the learned trial Judge that he found it impossible to calculate the loss of work or of profit from the loss of use of the truck. It must follow from this that the allowance of $10,000 for loss of income during this period is, at the most, a broad estimate in the nature of an impression from the evidence as a whole but unsupported by any detailed evidence capable of calculation. Consequently, the court was left in the position where the assessment of damages for the loss of profit could be undertaken, if at all, only on "a broad brush approach" - Rosser v Marine Ministerial Holding Corporation [1999] NSWCA 72 at [65] or by concluding the damages could not be awarded because the evidence failed to reach a minimum standard upon which an assessment could be based: Atkinson v Hastings Deering (Queensland) Pty Ltd (1985) 8 FCR 481 at 494 ‑ 496.
In deciding whether or not assessment of damages in this case was possible, the observations of Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 are of assistance. In that case the Appeal Division of the Supreme Court of Victoria allowed an appeal and dismissed an action for damages brought under s 52 and s 82 of the Trade Practices Act on the ground that no sufficient proof of the damages claimed had been achieved by the plaintiff and that, as damages was the gist of that statutory cause of action, the claim must fail. Brooking J, reviewed the authorities dealing with the adequacy of proposed proofs of damages in various circumstances as follows (at 241 ‑ 242):
"A plaintiff cannot recover substantial as opposed to nominal damages unless he proves both the fact and the amount of damage: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80 per Mason CJ and Dawson J; at 99 per Brennan J, at 118 per Deane J and at 137‑8 per Toohey J. If he proves the fact of the loss but does not call the necessary evidence as to its amount he cannot be awarded substantial damages (McGregor on Damages, 14th ed, pp 190 and 222): he must put the tribunal in the position of being able to quantify in money the damage he has suffered: Watts v Rake (1960) 108 CLR 158 at p 159, per Dixon CJ. So juries in personal injuries cases are often directed that the plaintiff must prove to their satisfaction what he has suffered and will suffer and what is fair and reasonable compensation in respect of that. It is often said that the amount of damage must be proved with a certainty, but this only means as much 'certainty' as is reasonable in the circumstances: Ratcliffe v Evans [1892] 2 QB 524 at pp 532‑3. Where precise evidence is obtainable, the court naturally expects to have it; where it is not, the court must do the best it can: Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at p 438; The Commonwealth v Amann Aviation Pty Ltd (supra) per Mason CJ and Dawson J at p 83. The nature of the damage may be such that the assessment of damages will really be a matter of guess work, as in the well‑known case of Chaplin v Hicks [1911] 2 KB 786, where the plaintiff had lost a chance of winning an engagement as an actress as a prize. So damages will be assessed for the wrongful detention of a race horse even though it may be necessary to guess at the amount: Wilson v Matthews [1913] VLR 224; compare Howe v Teefy (1927) 27 SR (NSW) 301 ...
But while in some cases guesswork may be permissible in assessing damages, in others it is not. Guesswork was not good enough in Williams v Stephenson (1903) 33 SCR 323 (breach of contract by preventing plaintiff from continuing to conduct hotels; trial Judge wrong in assessing damages by guessing); Wood v Grand Valley Railway Co 16 DLR 361; affirmed 22 DLR 614 (breach of contract to construct railway line; any estimate of loss practically guesswork); Toronto Transit Commission v Aqua Taxi Ltd 6 DLR (2d) 721 (violation of exclusive right of ferry; no intelligent conclusion possible as to amount of loss); Sunley (B) & Co Ltd v Cunard White Star Ltd [1940] 1 KB 740 and Woodman v Rasmussen [1953] St R Qd 202 (breach of contract to carry machinery; in Sunley the trial Judge wrong to assess damages while admitting that any attempt at analytical analysis of award must fail); Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 (breach of advertising contract; impossible to reach any estimate of damage suffered); Noske v McGinnis (1932) 47 CLR 563 at p 599 (breach of contract for sale of hotel; Evatt J, dissenting as to sufficiency of evidence, holds that it will not found a fair estimate of damages); and Ashcroft v Curtin [1971] 1 WLR 1731 (diminution of profitability of business as result of plaintiff's injury; quantification quite impossible). It all depends on the circumstances. Where a vessel was damaged by negligence and there was evidence that it was impossible to make a reasonably accurate estimate of the cost of repairs, the Full Court of Queensland upheld a direction that in estimating the cost of repair the jury must do its best on what seems to have been the exiguous material before it: Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113. The plaintiff may have been fortunate in the briefly noted case of Bovet v Walker (1917) 62 Sol Jo 104, where no evidence to enable the diminution in value to be quantified seems to have been led; I should have thought that expert evidence would have been available and should have been called."
In the present case the respondent was conducting a specialised road transport business for reward and kept business records, rather inadequate it seems, but sufficient to allow preparation of annual taxation returns. Over the two financial years in question, 1993/1994 and 1994/1995, the overall revenues of the business were expanding but the evidence before the court is not sufficient to enable any calculation to be made about the additional income (or profit) which could have been derived had the Louisville prime mover been available for service between September and December 1994. To my mind, this is not a case where evidence attempting to quantify the loss from the vehicle being unavailable for that three month period was impossible to obtain nor inherently uncertain or incapable of reasonably precise calculation. Had accounting evidence been led on behalf of the respondent it may have been possible to compare the profitability of the business operation during the period when the Louisville prime mover was off the road and to contrast that with the period or periods when the respondent was using it or a replacement in order to measure the difference which it made to his periodic income. This was not done. Nor was there any evidence called from the trade or generally about the return to be expected to be derived from the employment of such a vehicle in profitable transport operations, either of the kind undertaken by the respondent or generally.

In those circumstances I consider that this is a case where the respondent has failed to establish damages and that the court cannot estimate or guess in an endeavour to make good that omission. Having reached the conclusion that it was impossible to estimate the loss of revenue or profits from the absence of this truck, I consider that the learned trial Judge was in error to proceed to make a general estimate otherwise unsupported by any evidence. There has been no attempt to support the assessment of this component of damages of $10,000 on any other grounds and, as the respondent was awarded substantial damages for the loss of the actual value of the vehicle no question arises about an award of nominal damages under this head. I consider that this ground of appeal should be allowed and the damages allowed reduced by $10,000.
The reduction of this figure of $10,000 will also affect the calculation of interest allowed on the damages awarded by the learned trial Judge. Recalculating interest on $19,000 rather than $29,000 will reduce the interest component of $13,238.30 to $8,673.37 and the aggregate judgment from $42,238.30 to $27,673.37.

Excessive interference

Ground 5 of the appeal contends that the learned trial Judge interfered excessively with the trial process with the result that the conduct of the appellants' case by counsel was severely compromised and under all the circumstances there was a prospect that the appellants did not get a fair trial in that the learned Judge asked questions and made remarks on some 120 occasions during the examination of witnesses. It is not perhaps insignificant that ground 6 of the notice of appeal (abandoned before the commencement of the hearing) advanced a case of actual bias against the learned trial Judge because of his role in asking questions and making observations during the course of the trial.
The issue of alleged perceived bias was recently examined by this Court in Sheppard v Swan [2004] WASCA 215 where McLure J, with whom Malcolm CJ and I agreed, said that it is no longer the case that judicial silence is a counsel of perfection and cited a passage from the judgment of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at 571:
"It seems to us that a trial Judge who made necessary rulings but otherwise sat completely silent throughout a non‑jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."
Her Honour emphasised that, particularly towards the end of a trial, it is to be expected that the presiding Judge will have formed views, some firm and others of different strengths, on the various issues presented for decision and that this is an inevitable, indeed a desirable, function of the judicial role leading, in some situations, to the possibility of giving an ex tempore decision - see Kaycliff v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 317.
In R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 294 it was accepted that a Judge is entitled, and sometimes obliged, to indicate during the course of the trial his or her views about the issues or difficulties in a case. In Johnson v Johnson (2000) 201 CLR 488 the High Court rejected an argument that a Judge at the trial of proceedings in the Family Court had exhibited bias by making an observation of his intention to rely upon the evidence of independent parties and contemporary documents and, in doing so, spoke of the role of a Judge in raising matters for consideration by counsel and the parties during the course of the trial. At 493 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
" ... The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern Judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a Judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly (supra) Brennan, Dean and Gaudron JJ referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case' - see also Re Lusink; ex parte Shaw (1980) 55 ALJR 12 at 15. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."
In the written submissions filed on their behalf the appellants seek to make out the case that because of the number and frequency of the questions and observations of the Judge during the trial there was excessive questioning and that the learned trial Judge descended into "the area of conflict". The complaint so made is couched in the terms of, and supported by, reference to authorities dealing with apprehended bias and the tests for that prevailing in England - Jones v National Coal Board [1957] 2 QB 55 - before the examination and exposition by the High Court of the law for Australia on this subject contained in the cases cited earlier, R v Watson; ex parte Armstrong (supra), Johnson v Johnson (supra) and Vakauta v Kelly (supra).
In my view there is no basis at all upon which to conclude that by reason of the questions or observations by the learned trial Judge during the course of the trial the appellants were prevented from developing or presenting their case. No complaint is made about the refusal to admit evidence or the rejection of particular items of evidence, nor is there any suggestion that counsel was handicapped from putting forward all submissions and contentions of fact in support of the appellants' (defendants') case at trial. Rather, the burden of this ground of appeal is on the basis of perceptions of bias but, there again, I consider that it must fail in this regard. I do not consider that there is anything which justifies a conclusion that any reasonable observer could conclude that the court was not impartially and disinterestedly hearing this case and, in the process, enquiring into all matters which may be relevant for the proper determination of the issues.
In many respects the questions asked by the learned trial Judge were directed to trying to ascertain the trading arrangements of the respondent in order to consider the claim for damages for loss of profits, a task which, having regard to the paucity of the evidence on that issue, one can well understand was prompted by a concern to understand the basis of that part of the claim. Similarly, many of the other questions about which complaints have been raised relate to enquiries made by his Honour about any connection between the steering mechanism of the truck and the engine and the degree to which one mechanical system might be worked on while repairs and work was being undertaken on another - all questions plainly relevant to an important issue raised by the parties for decision. I do not see any basis upon which this ground of appeal could succeed and it must be dismissed.

Notice of appeal - counterclaim

As already noted, the relief sought by the appellant in the notice of appeal includes a claim for an order that the judgment of the District Court which awarded damages to the respondent in the sum of $29,000 and interest and costs and also dismissed the appellants' counterclaim be set aside and in lieu thereof it be ordered that:
"(a)the respondent's claim against the appellants be dismissed;
...
(c)there be judgment on the appellants' counterclaim against the respondent in the sum of $7,711.87 together with interest thereon at the rate of 8% per annum from 9 September 1994 to 12 September 1997 and at the rate of 6% per annum from 13 September 1997 to the date of judgment ... ".
The appellants are seeking these orders in circumstances where, as previously noted, the learned trial Judge found that had it not been for the liability of the appellants in damages for the loss of the vehicle the counterclaim would have been allowed.
Oddly, there is no specific ground of appeal asserting that there should be judgment for the appellants on the counterclaim independently of the liability of the appellants to the respondent on the principal claim. The relief sought by the appellants in par 1(c) of the notice of appeal which seeks judgment on the counterclaim for $7,711.87 together with interest appears to proceed on the same footing, as the approach adopted by the learned trial Judge, that there could only be judgment for the appellants on the counterclaim if the respondent's claim for damages was entirely dismissed.
In these circumstances the significance of the orders being sought in the event that the appeal is successful is somewhat ambiguous. Their first, and perhaps most obvious meaning appears to be that in the event, but only in the event, that the appellants are successful in having the judgment awarded in favour of the respondents for damages and interest being wholly set aside, it should follow that they are entitled to judgment on the counterclaim in the light of the conclusion of the learned trial Judge. However, another but perhaps less obvious implication in the notice of appeal is that the appellants should be entitled to succeed on the appeal to the extent of the counterclaim assessed by the learned trial Judge at $7,711.87 together with interest, regardless of whether the appeal against the judgment for damages in favour of the respondent succeeds either entirely or in part.
For the reasons already given I consider that the appeal against the judgment in favour of the respondents on their claim should succeed in part, namely to the extent of reducing the damages awarded by the sum of $10,000 allocated to the loss of the use of the vehicle between September and December 1994 and the interest calculated on that component of the damages. However I consider that the respondents remain entitled to damages for the value of the truck at the date of the accident plus interest. The question which, therefore, remains concerns the significance of the notice of appeal, insofar as it seeks judgment for the appellants on the counterclaim, where the appellants have had partial but not complete success in their appeal from the judgment awarded in the principal action.
The task of addressing this issue is presented to the court in circumstances where there are no grounds of appeal set out in the notice of appeal which contend that the dismissal of the counterclaim was wrong in the light of the findings made by the learned trial Judge or upon any other basis. In particular there is no ground of appeal which contends that the appellants should have been awarded judgment on their counterclaim regardless of the outcome of the principal action. Nor were any written or oral submissions advanced to contend that such a result should follow upon the determination of this appeal. The absence of any such ground of appeal specifically addressing these issues leaves the claim for relief, insofar as the appellants seek judgment upon their counterclaim, unsupported and the notice of appeal itself, to this extent, irregular. The potential significance of this was not addressed in any way at the hearing of the appeal.
The power of the Full Court when allowing an appeal includes the power to make such further or other orders as the case may require (RSC O 63 r 10(2)), a power which history has demonstrated is wide and flexible - see National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VLR 386 per Brooking J at 591 ‑ 594 and which certainly includes the power to give any judgment and make any order which ought to have been given or made at first instance - Dearman v Dearman (1908) 7 CLR 549 at 561. But this does not mean that the orders which should be made in the event of a successful appeal are entirely at large because it is for the parties to identify the relief which is being sought and it is for them to specify the grounds upon which it is contended that the relief sought by a moving party should or should not be granted. This is, in part, designed to ensure that procedural fairness will be accorded to respondents who will, if proper notice of the relief sought and the grounds upon which it is sought is given, have the opportunity to consider in advance the apparent merits of the appeal or cross‑appeal and to prepare for and direct argument to the issues upon which the determination of the appeal may depend. It is for this reason that it is unacceptable that an appeal should be determined upon a ground which was not addressed at the hearing and upon which the parties had no opportunity to make submissions.
An unusual variation of this position has arisen in this appeal. The appellants seek an order, in the appeal, to award them judgment on the counterclaim but have failed to specify the grounds of appeal in support of that claim for relief. This renders the notice of appeal defective, and the claim for judgment on the counterclaim prone to being struck out for want of supporting grounds. Even a claim for relief upon specified grounds which lack sufficient particularity may be deficient and so be struck out - see Motor Accidents Board (Victoria) v Coutts [1984] VR 790 per Brooking J at 793 ‑ 798 and State of Victoria v Bacon [1998] 4 VR 269 per Phillips JA at 285 ‑ 287 - often then leading to the question of whether or not, and if so to what extent, an amendment to the notice of appeal or grounds of appeal may then be permitted. Because this situation was not addressed by the parties the court is left in the position where there remains a defective notice of appeal which advances a claim to set aside or vary the judgment below and, in part, for judgment to be given in favour of the appellants on the counterclaim. No steps have been taken by the respondent to seek to strike out this claim for relief.
Because of the potential ambiguity in this aspect of the notice of appeal as previously noted it might yet be open to the appellants to contend that they are entitled to succeed on the appeal from the dismissal of their counterclaim notwithstanding that the tacit premise upon which the appeal was argued, implied that a successful appeal from the dismissal of the counterclaim required that the appellants' appeal against the judgment in favour of the respondents on their claim should be wholly successful. This would require, at the very least, a successful application for leave to amend the notice of appeal to insert specific and sufficient grounds of appeal in support of the appeal from the dismissal of the counterclaim. The appellants would then be faced with what may be a difficult task of supporting an application for leave to amend at such a late stage but I do not consider that, in the absence of submissions, the court can at present exclude the possibility that the introduction of such points at this stage may be permitted on the basis that the issues to be raised would involve exclusively an issue of law or the application of established or admitted facts which are beyond controversy: Water Board v Moustakas (1988) 180 CLR 491; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 439 and Green v Sommerville (1979) 141 CLR 594 per Mason J at 608. Against this possibility there remains potentially the application of the principle that a party is bound by the conduct of his case - University of Woollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481 at 483.
Still the position is that the notice of appeal does seek relief in the form of judgment for the appellants on the counterclaim and, notwithstanding that this is not supported by grounds of appeal, it must be dealt with by the court - Jones v R (1989) 166 CLR 409 at 411 per Mason CJ, Brennan, Dawson and Toohey JJ and at 415 ‑ 416 per Deane J.
In this respect it is also significant that the learned trial Judge did not identify any specific reasons for his conclusion that the counterclaim should be dismissed because of the respondent's success in their claim for damages. Presumably, his Honour took the view that, having contracted to undertake an engine rebuild and repair for the respondent, the appellants were not entitled to be paid for the services or parts supplied in the performance of that contract unless the contract was fully or substantially performed and, because the vehicle was irreparably damaged due to the appellants' breach of duty, the contract could never be performed and hence the agreed consideration was not payable. This would, of course, be correct if the respondent had derived no advantage from the engine rebuild and servicing undertaken by the appellants but, if benefit was derived by the respondent and accepted by him there would be an obligation for him to pay the agreed price, or in the absence of an agreed price, a reasonable price for the work and parts supplied - Steele v Tardiani (1946) 72 CLR 386 per Dixon J at 402 and Steven v Bromley & Son [1919] 2 KB 722 per Scruttom LJ at 727.
In the present case the respondent claimed for and recovered the value of the Louisville prime mover at the date of the accident in the sum of $29,000 on the basis that it was then in full working order and that this value included the benefit of the work undertaken by the appellants. By accepting the value of the truck, enhanced as it was by the repairs and overhaul undertaken by the appellants, there appears to be an obligation upon the respondent to pay the agreed or determined price for that work. However, as no submissions were directed particularly to this issue at the hearing of the appeal it is not appropriate to express any conclusion in this regard beyond accepting that the appellants may have grounds to support the appeal from the dismissal of their counterclaim which are not dependent upon them achieving complete success in their appeal against the judgment awarding damages against them as bailees.
In my view it is, therefore, necessary to allow the parties an opportunity to make submissions upon these issues which were not addressed at the hearing of the appeal. That can be done by making an order dealing with the appeal from the judgment for damages in favour of the respondent on his claim, and then standing over, for a limited period, the appeal against the dismissal of the counterclaim to allow the parties to make written submissions as to whether or not the court should grant the respondent an opportunity to apply to strike out sub‑par 1(c) of the notice of appeal which seeks judgment for the appellants on their counterclaim, or for the appellants to make application to amend the notice and grounds of appeal, or for the appeal to be relisted for further submissions generally.

Summary

In the light of these conclusions I consider that the appeal against the finding of liability of the appellants to the respondent for breach of duty as bailees of the truck undergoing repair must fail. However, I consider that the appellants have made out their ground of appeal against the quantum of damages awarded and that the judgment in the District Court should be varied by reducing the damages for the $10,000 plus interest allowed for loss of use of the truck between September and December 1994. As already explained, this has the effect of reducing the judgment from $42,238.30 to $27,673.37.

I would allow the appeal to the extent of varying the judgment of the District Court of Western Australia entered on 8 July 2002 by reducing the damages awarded to the respondent from the sum of $42,238.30 to the sum of $27,673.37. Further, I would stand over the determination of the appellants' appeal from the dismissal of their counterclaim for determination in a manner and at a time to be fixed by the court after the expiration of 30 days from the publication of these reasons and grant liberty for any of the parties to apply within 21 days of this date to strike

out par 1(c) of the notice of appeal, or to apply for leave to amend the notice of appeal and grounds of appeal insofar as they relate to the dismissal of the counterclaim; and to seek leave to relist the hearing of this appeal in relation to the counterclaim at a date to be fixed. Any or all such applications should be accompanied by written submissions in support of, or in opposition to, any such applications or relief as may then be sought.

LE MIERE J: I have had the advantage of reading in draft the reasons for judgment of EM Heenan J. I agree with the orders proposed by his Honour and that the appeal from the dismissal of the appellant's counterclaim should be stood over for further determination for the reasons stated by his Honour.