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
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
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- Gerrard v Slamar [2004] WASCA 253
- Case
- [2004] WASCA 253
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defendants were liable for the damage caused by the steering column defect and the extent of the damages that could be awarded. The court needed to determine if the evidence provided was sufficient to calculate the loss of income and profit from the loss of use of the truck. The plaintiff argued for substantial damages, while the defendants contended that the evidence was insufficient to support such a claim.
The court found that the evidence provided by the plaintiff was insufficient to accurately calculate the loss of income and profit from the loss of use of the truck. The judge noted that the assessment of damages for the loss of profit could only be undertaken on a broad brush approach, as there was no detailed evidence capable of calculation. The court relied on previous cases to establish that the plaintiff could not recover substantial damages without proving both the fact and the amount of damage. The court concluded that the damages could not be awarded because the evidence failed to reach a minimum standard upon which an assessment could be based.
The court dismissed the plaintiff's claim for damages, finding that the evidence did not support the assessment of damages for the loss of profit. The court did not award any damages to the plaintiff.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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."