Hill v Temple (No 2) - [1989] TASSC 42

Serial No 39/1989
List "A"

CITATION: Hill v Temple (No 2) [1989] TASSC 42; (1989) Tas R 157; A39/1989

PARTIES:  HILL
  v
  TEMPLE

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 129/1987
DELIVERED ON:  31 August 1989
DELIVERED AT:  Hobart
JUDGMENT OF:  Neasey, Nettlefold and Wright JJ

Judgment Number: A39/1989
Number of paragraphs: 33

Serial No 39/1989
List "A"
File No FCA 129/1987

HILL v TEMPLE (NO 2)

REASONS FOR JUDGMENT FULL COURT

NEASEY J
NETTLEFOLD J
WRIGHT J
31 August 1989

Order of the Court:

The order of the Court is (Neasey J dissenting) that the respondent's application for an indemnity certificate in respect of the appeal be refused.

Serial No 39/1989
List "A"
File No FCA 129/1987

HILL v TEMPLE (NO 2)

REASONS FOR JUDGMENT FULL COURT

NEASEY J
31 August 1989

There was an appeal and a cross–appeal in this matter. The plaintiff/respondent had suffered severe injury to his right leg, and the learned Chief Justice found that he had been left with a permanent disability in it of the order of 20%. The respondent at the time of the accident was employed by the Hobart City Council as a labourer and handyman, mainly in the outer suburbs of the city. In addition, he had prior to the accident engaged in some general contracting work on subdivisions and farms. Liability was admitted at the trial, so that the only question was assessment of his damages. A principal issue in this was the extent to which his pre–accident earning capacity had been destroyed or reduced by disabilities resulting from his injury. The trial judge assessed the respondent as having lost 40% of earning capacity. The appellant argued that the damages awarded were grossly excessive, due in part to alleged over–assessment of destruction of working capacity at 40%, whereas the respondent in the cross–appeal contended that the assessment of damages was seriously inadequate, principally because of under–assessment of the loss of earning capacity.

I agree with the analysis of Wright J in his reasons for judgment, which I have had the advantage of seeing in draft, as to the effect of the judgment by the Full Court in the respondent's favour. Apart from some minor adjustments to the damages awarded, we agreed with the respondent's contention that the loss of working capacity should have been assessed at 60% instead of 40%, and we made the necessary alterations accordingly to the overall award which resulted in an increase in the respondent's damages from $154,971.38 to $188,215.38. The appellant was ordered to pay the respondent's taxed costs of the appeal and the cross–appeal, and he thereupon applied to the court for an indemnity certificate in respect of the costs of the cross–appeal, under the provisions of the Appeal Costs Fund Act 1968 ("the Act"). The court reserved judgment on the question whether an indemnity certificate should be granted.

The Act was passed in this State in 1968, and was modelled closely upon similar statutes in…

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.

Continue reading Hill v Temple (No 2)

Details

AGLC: Hill v Temple (No 2) [1989] TASSC 42
Case: [1989] TASSC 42
Decision Date: 31 August 1989

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the Full Court heard an appeal and a cross-appeal in the matter of Hill v Temple. The plaintiff, Hill, had suffered severe injury to his right leg and was found to have a permanent disability of 20%. Hill had been employed by the Hobart City Council and had also engaged in general contracting work. Liability was admitted, and the sole issue was the assessment of damages, specifically the extent of the reduction in Hill's earning capacity due to his injuries. The trial judge assessed a 40% loss of earning capacity, but the Full Court found that the loss should be assessed at 60%, increasing the damages awarded to Hill from $154,971.38 to $188,215.38. Following the appeal and cross-appeal, the appellant applied for an indemnity certificate in respect of the cross-appeal costs under the Appeal Costs Fund Act 1968.

The legal issues before the court were whether the appeal and cross-appeal fell within the jurisdiction of the Act and whether an indemnity certificate should be granted. The court examined the jurisdictional requirements of the Act, which include an appeal on a question of law that succeeds. The court found that the appeal did indeed succeed on a question of law, as the Full Court corrected the trial judge's erroneous assessment of Hill's loss of earning capacity. However, the court was divided on whether the appeal was based on a question of law or fact. While Neasey and Wright JJ believed the appeal succeeded on a question of law, Nettlefold J held that the appeal was based on a question of fact.

The court ultimately concluded that the appeal did fall within the jurisdictional requirements of the Act, as the error was one of fact rather than law. However, the court refused to grant the indemnity certificate due to the appellant's role in initiating the appeal, which was unsuccessful. The court held that the applicant had no prima facie entitlement to a certificate and that the applicant's actions in initiating the appeal were a significant factor against granting the certificate.

Orders