Hill v Temple (No 2)
[1989] TASSC 42
•31 August 1989
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 other States, such as the Suitor's Fund Act 1951 of New South Wales, The Appeal Costs Fund Act 1964 of Victoria, and The Suitor's Fund Act 1964–1969 of Western Australia. All four statutes have a common basic provision which grounds jurisdiction in an appropriate court to exercise a discretion to grant to a losing party in appellate proceedings an "indemnity certificate", which in accordance with other provisions of the relevant Acts enables that party to recover out of a fund created by fees levied upon all litigants in that court an indemnity for costs which he has incurred in the course of the proceedings. In Tasmania, the operative provision is found in s8 of the Act. The purpose and operation of the Act, and in particular of s8, was thoroughly examined by the Full Court of this State in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd [1972] Tas SR 41.
Section 8 of the Act lays down two basic requirements as grounds of jurisdiction to grant an indemnity certificate. There must be (1) an appeal on a question of law (2) which succeeds. Where those two conditions are met, the court "may, on application made in that behalf, grant to the respondent to the appeal or to one or more of the several respondents to the appeal an indemnity certificate in respect of the appeal". The cases establish that the word "may" indicates a genuine discretion which is to be exercised in accordance with the objects of the Act and the circumstances of the case. An indemnity certificate does not follow as a matter of course on the mere establishment of the two basic conditions. Courts in all of the States abovementioned have emphasised this, and relevant examples of such authorities are cited in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd (supra).
It is useful, I think, to observe that the expression "an appeal on a question of law succeeds" does not mean quite the same as "an appeal succeeds on a question of law", though sometimes in the decided cases the two expressions are treated as synonymous. As a matter of ordinary English, to say that an appeal succeeds on a question of law will usually be taken to mean that the point on which the appeal turned involved a question of substantive or procedural law which was in some way misunderstood or misapplied by the tribunal. But an appeal on a question of law may succeed and often does upon the basis of a mistake of fact.
The latter proposition is illustrated by the present case. The substance of the main ground of appeal was that the damages awarded to the appellant were "manifestly excessive", whereas the main ground of cross–appeal was that the same award of damages was manifestly inadequate. Whether an award of damages made by a trial judge is so erroneous that it should be interfered with by an appellate court is undoubtedly a question of law. "The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered", said Mason J, as he was then, in Wilson v Peisley (1976) 50 ALJR 207, at p214, expressing the generally accepted rule.
If the trial judge has misapprehended the facts, or the amount of damages awarded by him is so inordinately low or high as to be a wholly erroneous estimate of the damage suffered, then his conclusion must be described "as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination". Lord Radcliffe said in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, at p36, in effect, that an appeal against such a conclusion is an appeal on a question of law, even if the conclusion be one of fact only (as it was in Bairstow). See also, two later decisions of the House of Lords, Tyrer v Smart(Inspector of Taxes) [1979] 1 All ER 321, and Pioneer Shipping Ltd & Ors v BTP Tioxide Ltd, The Nema [1981] 2 All ER 1030 at 1039, in which Lord Radcliffe's dictum in Bairstow's case (supra) was applied.
Thus, the jurisdictional basis for a certificate under the Appeal Costs Fund Act may, where the conditions set up by the Act are fulfilled, be provided as readily by an appeal which succeeds because of an error of fact as in one which succeeds because of an error of law. Furthermore, once the jurisdictional basis is established, the question whether the crucial error was one of law or fact need not necessarily affect the exercise of discretion to grant or refuse a certificate.
Crawford J in his judgment in Woodhall's case (supra) examined the effect of the authorities in respect of factors influencing exercise of the discretion. Refusal of a certificate is usually based upon some aspect of the way in which the case was conducted by the party applying for the certificate, as in Durnett v Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106 (see per Dixon CJ at p113), Richards v FallsPty Ltd [1971] WAR 129, and Pataky v Utah Construction and Engineering Pty Ltd and Anor (1966) 84 WN (NSW) 201; or by general considerations such as that the relevant ground of appeal which succeeded is only one of many argued, or the like, as in Acquilina v Dairy Farmers Co–operative Milk Co Ltd (1965) 82 WN (NSW) 531. But it remains true that the object and purpose of the Act is to provide relief in cases where the processes of the law have failed the applicant through no fault of his own, thus incurring unproductive cost and expense which it is fair should be borne by litigants as a whole rather than thrown upon the applicant; and I have already observed that such a failure may occur as readily when the crucial error was one of fact as when it was one of law.
In the present case I think that a certificate should be granted. While the appeal was on a question of law, the conclusion on which it turned and which the Full Court found to be wrong was one of fact only – namely the learned trial judge's finding in respect of the extent of destruction of the respondent's future earning capacity. I would not myself view the fact that the applicant commenced the appellate process himself, and did so unsuccessfully, as a reason for refusing a certificate. The certificate if granted will apply only to the cross–appeal, which is to be regarded for this purpose as a severable and distinct proceeding from the appeal. I do not see any facts or circumstances militating against the grant of a certificate.
Accordingly I would order that it be granted.
File No FCA 129/1987
HILL v TEMPLE (NO 2)
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
31 August 1989
The facts of this matter are set out in the reasons prepared by other members of the Court.
My conclusions are:–
(1) The court has no jurisdiction to grant the application.
(2) If I am wrong about that the application should be refused.
Jurisdiction
This is not a case where an appeal "on a question of law succeeds" within the meaning of those words in s8(1) of the Appeal Costs Fund Act 1968.
The following proposition has been supported by clear authority for at least 50 years:– A challenge to an award of damages for personal injuries on the mere ground that the amount awarded is excessive or inadequate raises a mere question of fact not law (Henderson v Clifford Watmough and Co (1939) 161 LT 233; Shave v JW Lees (Brewers) Ltd & Anor (1954) 3 All ER 249; The Nominal Defendant v Hook (1965) 113 CLR 641 at p643 per Dixon CJ and per Windeyer J at p657).
For an argument to the contrary reliance was placed on the following cases:– Edwards (Inspector of Taxes) v Bairstow & Anor [1956] AC 14; Tyrer v Smart (Inspector of Taxes) [1979] 1 All ER 321; Pioneer Shipping v BTP Tioxide [1981] 2 All ER 1030.
But there is no basis for a suggestion that in those cases the judges sub silentio overruled the line of cases previously mentioned. The basic distinction which explains and reconciles the two lines of cases is that given by Windeyer J in Hook's case (supra) "An objection that damages awarded are excessive or inadequate (that there was some damage not being in dispute) is an allegation that the verdict was against the weight of the evidence, not an allegation that there was no evidence to sustain it". (See also Gurnett v The Macquarie Stevedoring Co Pty Ltd (1956) 95 CLR at 113). The weight of the evidence is a matter of fact and whether there is any evidence to prove a cause of action is a matter of law, being a question for the trial judge when there is trial by jury. Edward's case and the other two cases relied on are examples of cases where the question was whether there was any evidence to support the conclusion arrived at below and, hence, a question of law. It was expressly recognised by Lord Radcliffe in Edward's case that "questions of degree" are questions of fact (see the report (supra) p33). That is a specific adoption of the proposition stated by Windeyer J in Hook's case and applied in the line of cases mentioned above dealing with damages for personal injuries.
Chenery v Cole (No 2) FC 8/1985 was not a case of mere excess of damages. It was a failure to apply binding principle to ascertained facts.
If the court does have jurisdiction, it should refuse the application. All that was involved in this case was a re–examination of the weight of a specific body of evidence about which reasonably formed opinions might differ. There was no problem of any misdirection in law or non–direction in law having misled the trial judge. It was a straight question of degree or weight. That being so, there is nothing in the case to activate the discretion. If this unsuccessful party to an appeal is entitled to a certificate, it is very difficult indeed to think of a case where the grant of a certificate could be refused. Surely the careful wording of the Act is directed against the development of such an approach.
File No FCA 129/1987
HILL v TEMPLE (NO 2)
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
31 August 1989
An analysis of the judgment of this Court delivered on 9 September 1988 will reveal that except in one comparatively minor respect the calculation of damages by the learned trial judge was not disturbed. We differed from his Honour in relation to the claim which he allowed at $8,000 for income lost from contracting work between the accident and the date of judgment. We reduced this figure to $5,000. However in all other respects we accepted his Honour's calculations. Where we parted company from him was in assessing the degree to which the respondent's earning capacity had been destroyed by the accident. His Honour assessed the respondent as losing 40% of his earning capacity. In our view this assessment was erroneous and should have been 60%. As a consequence of this comparatively simple process, the appeal was dismissed and the cross–appeal allowed. The respondent's entitlement to damages was increased from $154,971.38 to $188,215.38. We ordered the appellant to pay the respondent's taxed costs of the appeal and the cross appeal. The appellant (hereinafter "the applicant") now applies to this Court for an indemnity certificate in respect of the costs of the cross appeal under the provisions of the Appeal Costs Fund Act 1968 s8. The relevant portions of the Act provide that where an appeal to the Full Court from a decision of a single judge succeeds on "a question of law", the respondent to that appeal who has been ordered to pay and has paid the appellant's costs may be granted an indemnity certificate entitling him to be paid an amount equal to those costs out of the Fund, up to a limit of $4,000.
Section 2 of the Act in defining an "appeal" does not specifically provide that an appeal includes a cross appeal but I will assume for present purposes that it has that effect. It is not difficult to see, however, that although prima facie a cross appeal may be said to be within the phrase "any other proceeding in the nature of an appeal" and is equated with an appeal for most procedural purposes under the Supreme Court Rules, there are arguments which can be advanced that the purpose of the Appeal Costs Fund Act is not to indemnify that party who is before the Full Court essentially as the unsuccessful instigator of the appellate process.
It has also been long recognized that in appeals and cross appeals, as with claims and counterclaims, the party succeeding on the appeal normally receives the general costs of the appeal whereas the party (if a different party) succeeding on the cross appeal is normally entitled only to the further or increased costs of contesting the cross appeal. This principle as it applies to claims and counterclaims was fully discussed and its ample justification revealed by Dixon J (as he then was) in Smith v Madden (1946) 73 CLR 129 at 132 et seq. What his Honour said there is, in my opinion, of equal application to appeals and cross appeals in most circumstances. I mention this because counsel for the applicant urged upon us that the majority of the costs in this case were attributable to the cross appeal and, in my view, that submission should be rejected. In the circumstances of this application where the applicant in his character as respondent to the cross appeal seeks an indemnity only in respect of the cross appellant's costs, those costs which would be allowable on taxation as costs of the cross appeal, in all probability, would only be of minor significance in the overall bill, particularly as the principal issue in the proceedings, both in the appeal and cross appeal, centred upon Mr Temple's residual earning capacity. The only other major issue was the award for general damages, but this did not arise directly in the cross appeal and is therefore an issue in respect of which the applicant can gain no relief from the cost burden by obtaining an order of the kind now sought.
In Chenery v Cole (No 2), 81985, Nettlefold J viewed the powers exercised by the Full Court in determining an appeal from a single judge on a matter of damages as being a review of a discretionary judgment and, therefore, one circumscribed by specific and clearly identifiable rules. In this view he was clearly correct. (See Bridges v Quarrell, 35/1976). However, in Chenery v Cole (No 2), the court was dealing with a claimed departure by the trial judge from the prevailing standard then existing for the non–economic aspects of an award of damages embraced within an allowance for pain, suffering and loss of amenities. His Honour took the view that where there has been "a failure to reflect the prevailing standard", and that failure has been corrected on appeal, "the appeal has succeeded on a question of law". This view was supported by Cosgrove and Cox JJ, the other members of the Court.
In the present case however, there was no such question as that. The issue as to the plaintiff's residual earning capacity, whilst expressed conveniently in terms of a percentage, did not depend upon such matters as frequently arise, for example in relation to apportionments of contributory negligence and the like, which are normally recognizable as questions of law. The relevant exercise which we had to undertake was an evaluation of the evidence and what it showed as to this man's capacity to earn both before the accident and afterwards. This, to my mind, was a question of fact and I find it difficult to persuade myself that a question of law was involved. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at p77:
"There is no error in law simply in making a wrong finding of fact."
The learned trial judge partially based his conclusions as to the plaintiff's existing earning capacity upon the view that he could work as an owner–driver of a taxi, if he chose, and we rejected that as a legitimate conclusion from the evidence given at the trial. Counsel for the applicant submitted that this could be characterized as an error of law. His Honour's assessment in this respect did not depend upon the acceptance of some inadmissible evidence, the rejection of admissible evidence, or some erroneous view of the law; it amounted to no more than an unduly optimistic view of Mr Temple's future capacity which the evidence did not support. I would characterize this as a wrong finding of fact.
It is clear, however, from a reading of Chenery v Cole (No 2) (above) and Tasmanian Pulp and Forest Holdings Ltd & Woodhall Ltd, [1972] Tas SR 41 that a broad and liberal interpretation has been given to the phrase "a question of law" in cases arising under this legislation. One may contrast this approach with the much more restricted interpretation of the phrase "a question of law alone" which arises in relation to the Court's jurisdiction to entertain criminal appeals. (See Williams v Reg. (1986) 66 ALR 385 per Gibbs CJ, at 391, Mason and Brennan JJ at 402–403 and Wilson and Dawson JJ at 411: compare also Regina v Dixon (1988) 42 CCC 318.) It seems to me that on the basis of the Tasmanian authorities cited, whether one characterizes the learned trial judge's error in the present case as an error in the exercise of a discretion, or an error in drawing or failing to draw inferences from established facts, it should nonetheless be regarded as a question of law for the purposes of the Appeal Costs Fund Act 1968, s8. This is not a conclusion that I would have come to for myself unaided by precedent but it seems to me that the weight of authority is so plainly in the applicant's favour that it cannot be resisted.
It is noteworthy however that a jurist of the eminence of Sir Owen Dixon twice expressed himself in terms which appear to be inconsistent with this view. In Gurnett v The Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106, he said:–
"In the present case no consideration of law affected the matter at all. It was simply a question of whether the evidence adduced was enough to enable the jury to draw an inference of fact".
In Nominal Defendant v Hook (1962) 113 CLR 641, he said:–
"It is apparent that no appeal under s142 lay from the judge's assessment of damages upon the mere ground that they were excessive, that is to say that the amount assessed was unreasonable. That is not a matter of law".
[S142, to which he referred, gave a right of appeal to any party "aggrieved by the ruling, order, direction, or decision of the judge in point of law..."]
On the other hand there are a number of reported cases both in England and Australia in which a much wider view has been taken. These decisions were discussed at length by Burbury CJ and Crawford J in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd, and in substance they were followed by the Court in that case. The wider view which I have just mentioned is perhaps best typified by what Lord Radcliffe said in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 36:–
"When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test."
It seems to me that as a result of the views which have prevailed, the class of case to which s8 does not apply must be very limited indeed. It could almost be said that, apart from cases depending directly upon the evaluation of witnesses on matters of fact, (eg Voulis v Kozary (1975) 7 ALR 126), there is little which comes before an appellate court which does not involve a question of law.
The unsatisfactory dichotomy between questions of law on the one hand and questions of fact on the other, frequently gives rise to lengthy debate and difficulty in this Court. Unless we take the unusual step of requesting the aid of Crown counsel, we hear only one side of a potential argument viz., that advanced by the unsuccessful party seeking a certificate. The successful party has no interest in opposing such an application and, in my experience, does not do so. These are matters which are conducive to delay, added expense, and the disproportionate consumption of Court time. They produce arid debates which have nothing to do with the essential justice of an applicant's case. The meaning of a phrase such as "a question of law" should not vary markedly depending upon the statute in which it appears, yet judicial interpretation has led to this result. It would be very helpful indeed if the statutory test were re–examined by Parliament; at the same time, perhaps, re–appraising the policy of the Act bearing in mind the views expressed by Burbury CJ in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd, at p43:–
"The legislature has apparently adopted the view that this risk of litigation (ie the risk of a judge or magistrate erring in law) being a risk common to all litigants, it is just that the cost of correcting such errors in law (so far as the fund extends) should be borne by all litigants. As there is also a risk common to all litigants that a court may err on questions of fact, it is perhaps anomalous that the provisions of the Act do not extend to all appeals. A layman might be forgiven for failing to understand why he should be indemnified against costs occasioned by mistakes made by judges and magistrates on questions of law but not on questions of fact."
No doubt the provision of statutory criteria of the kind embodied in Costs in Criminal Cases Act 1976 s4 would also he a valuable aid to the Court.
Having concluded that s8 is wide enough to admit the applicant's claim for a certificate it is necessary to consider whether such a certificate should be granted in the present case. An applicant has no prima facie entitlement to a certificate. "A discretion is to be exercised depending on the facts of a particular case" (per Crawford J in Tasmanian Pulp and Forest Holdings Ltd v Woodhall Ltd, at p55). It appears to me that in the present case there is one factor which is strongly adverse to the applicant's claim. I have already adverted to this factor in a different context above.
The applicant was responsible for bringing this matter to this Court. He initiated the appeal. He was not brought here reluctantly as a party seeking to defend the award below and simply adding a cross appeal to strengthen his hold upon the verdict, as is so often the case. He reopened the litigation after judgment had been given and was unsuccessful. To my mind this is a powerful reason to reject his present application. There is, of course, no guarantee that the respondent (cross appellant) would not have appealed had the applicant not done so first, but equally there is no sound foundation for assuming that he would have taken this step. These considerations lead me to conclude that the current application lacks demonstrable merit and should be refused.
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