Hipworth v K & S Freighters Pty Ltd

[1994] HCATrans 253

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M133 of 1993

B e t w e e n -

KEN HIPWORTH

Applicant

and

K & S FREIGHTERS PTY LTD

.Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

Hipworth 1 11/3/94

AT MELBOURNE ON FRIDAY, 11 MARCH 1994, AT 10.23 AM

Copyright in the High Court of Australia

MR P.J. GALBALLY« QC:  I appear, if the Court pleases, with

my learned friend, MR M. WILSON, on behalf of the

applicant. (instructed by Holding Redlich)

MR J.E. BARNARD« OC:  May it please the Court, I appear with

my learned friend, MR F.D. SACCARDO, for the

respondent. (instructed by Hall & Wilcox)

MASON CJ:  Mr Galbally.

MR GALBALLY: If the Court pleases. In 1985 in New South

Wales, Justice of Appeal Priestley, in delivering the principal majority judgment in Moran v McMahon,

expressed the hope that in due course the rule in

Planet Fisheries might be reconsidered by this

Court.

At page 724 of the report he detailed three

reasons why reconsideration might be called for. today. We say that this appeal is a suitable

vehicle and we say, further, that reconsideration

of the rule is made even more relevant and

necessary by a number of developments which have

taken place in .re.cent years ,affecting the

·administration of justice in Victoria in respect of

awards for personal injuries.

It should be appreciated at the outset that

curiously, being sought, perhaps, more by

the majority of personal injury awards in this

defendants than plaintiffs.

When the appellate division in this State is

called upon to pronounce judgment on the

reasonableness or otherwise of a jury verdict, the

following circumstances now prevail: firstly, because the supreme court has largely lost its

in the appellate jurisdiction have limited, if any,	involvement in personal injury work, judges who sit
contemporary experience of jury verdicts; secondly, because of legislative changes, jury
verdict damages for non-economic loss are now specifically identifiable rather than being a
non-disclosed component in a global verdict. As a result, they can and have become the object of
scrupulous examination.
Thirdly, particularly in circumstances where a common claim for pecuniary loss is no longer
available to a plaintiff because of legislative
intervention, the universal experience has been that jury verdicts have significantly increased in
respect of non-economic loss damages. The verdict,

Hipworth 2 11/3/94

of course, the subject-matter of this appeal, is of such a kind.

MASON CJ: What use are you actually seeking to make of

verdicts in other cases?

MR GALBALLY:  We seek to be able to put before an appellate

court a range of verdicts where juries have awarded

sums which demonstrate that the verdict in the case

before the court is in line with the range of

verdicts which are currently being handed down by

juries in this State.

McHUGH J:  But you did not seek to do that before the Court

of Appeal.

MR GALBALLY:  We did not, in terms of setting out a list of

comparative verdicts because we believed that we

were not entitled to do that.

McHUGH J: That does not mean that you should not have taken

the point. Merely because there is a binding
decision does not mean that you can ignore the

point and then raise it here.

MR GALBALLY:  The point had been raised in terms of lists

being put before an appellate division previously, previous cases, comments having been made about the

adequacy or otherwise of the material. But .. there was certainly and has not been any methodology in

the Victorian Appellate Division whereby there is a

basis for the presentation of such material to the

court.

TOOHEY J:  How was the matter argued before the Full Court,

Mr Galbally? I mean, on both sides there was - the

defendant was contending that the award was

excessive; the plaintiff was contending that it was

not. I am not asking you to go into detail but

what was the basis of the challenge? Simply that

if one looked at the award the instinctive reaction

was that it was so large that it could not stand?

MR GALBALLY:  Yes, that was the challenge made to it on

behalf of the appellant. In fact, my

recollection is that the appellant was not even called upon in the course of the appeal. I was

called upon as the respondent. The basis upon

which we responded was that here you had a type of

case which, because of the new legislative

framework, was in a field where jury verdicts had

now become substantially greater because of an

additional component available in a claim for

non-economic loss and this was such a case and that

it ought to be now recogized that jury verdicts in

this field were substantially greater than what

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they were at the time that there was simply an

overall verdict in the ordinary common law terms.

MASON CJ: What does Carson say on this point?

MR GALBALLY:  What we say, Your Honour, is that we now have

Carson majority judgment, is that - - -

with a de facto abrogation of the rule in

MASON CJ:	Have you the reference to the passage in Carson?
MR GALBALLY:	Yes, I do, Your Honour. If one looks at

page 59 of the report, part 1 of 178 CLR, the Court

says this, half-way through the first paragraph:

Appellate courts would have regard to personal

injury awards to assist in resolving the

question whether "the amount awarded is so

high or so low that it is outside the range of

what could reasonably be regarded as
appropriate to the circumstances of the case".

Now, of course, the Court there is referring to the reasonableness or otherwise of a defamation

verdict.

MASON CJ: When you look at the foot of page 59, is not the

judgment accepting Planet Fisheries?

MR GALBALLY:  We would say that that is one of the

difficulties that we face in the circumstances here
because you have, on the one hand, the apparent

view of the Court that one can look at a range of

personal injury awards when looking at the
reasonableness or otherwise of a defamation
verdict. We say, if that be the case, it would be
curious to say the least if the Court would not be
able to look at a range of personal injury awards

when looking at the reasonableness or otherwise of

a personal injury verdict.

TOOHEY J: But do you read Planet Fisheries as positively

excluding any reference to comparable awards? I

question whether it goes that far, Mr Galbally. It

certainly says, "These matters are not to be

resolved" in that way. I am not sure that it

necessarily excludes any reference to other awards.

MR GALBALLY:  Your Honour, we say that it certainly excludes

reference to a range of contemporaneous

awards - - -

McHUGH J:  My recollection was that it said that the

adequacy of awards in personal injury cases were

not to be determined by reference to any norm

Hipworth 4 11/3/94

supposed to be derived from awards in other

personal injury cases.

MR GALBALLY:  Yes, and awarded in a number of other specific

cases. Now, if one is not able to refer to

specific cases, well then, one wonders as to what

the weight of the material might be that would be

before the court.

TOOHEY J: This is a difficult application with which to

test those questions because the matter was not put before the Full Court and there is no determination
by the Full Court in this case of what its attitude

is or how it used Planet Fisheries.

MR GALBALLY: There is, Your Honour, a reference to the

dilemma faced by the court in looking at Planet

Fisheries in a number of the unreported decisions

which preceded this matter in the Full Court. We

say that a reading of those decisions make it clear

that there are problems in terms of interpreting

what Planet Fisheries is really saying. If I can

refer the Court specifically to one instance where

that matter is referred to. It is in the -

TOOHEY J: But can I just put this to you. Say, for

instance, if the Court granted special leave to

appeal, and say it took a narrow view of Planet

Fisheries or a different view, where would that

leave you?

MR GALBALLY:	We would seek to be able to introduce pefore the Court, if the Court did take that view, a range
of verdicts in cases of a comparable naturewhich are -
TOOHEY J:	You mean, the matter would then go back to the Full Court to reconsider, in the light of whatever
view this Court took of Planet Fisheries?
MR GALBALLY:	Yes, Your Honour. We would believe, with

respect, that that would be the appropriate way for
the matter to be dealt with.	The experience has

been from the unreported judgments that so far as

the Full Court is concerned, there is certainly not

an enthusiasm in the court to accept material

indicating what are the contemporary range of

verdicts in what would be asserted to be

comparative cases in the Victorian jurisdiction.

MASON CJ:  I think one has to bear in mind that in Planet

the Court was primarily resisting the notion that

its judgment should be used as founding general

norms and this was at a time when this Court and

the members of it were very conscious of the fact

that there were different levels of award in

different States of the Commonwealth for the same

Hipworth 11/3/94

injuries. In other words, it was well known at

that time that in New South Wales higher awards

were obtainable for injuries which would have

attracted lesser awards in other parts of the

Conunonwealth. The argument put in Planet was

really designed to try and establish norms or a

tariff from the judgments of the High Court itself

and that is what appears to have been rejected in the judgment.

MR GALBALLY:  Yes, Your Honour. The difficulty that we say

has now become very evident is that without the
opportunity to be able to refer to what are a

comparative range of verdicts, there is really very

little material that can be utilized, in an

appellate sense, upon which to base the argument

that conununity values suggest that the verdict

appealed from was a reasonable verdict. We say

that problem, of course, is compounded by the fact

that the justices hearing these matters in the

appellate jurisdiction really, on their own

admission, have very little in the way of

contemporary experience of jury verdicts.

So that when one comes to argue the

reasonableness or .otherwise of a jury verdict, it

·comes back, we say, to the problem that has been

described fairly vividly by the President of the

Court of Appeal in Moran's case.

TOOHEY J:  I must say, Mr Galbally, it just surprises me a

little to be told that the Full Court of the

Supreme Court, in a challenge to a damages award,

whether by plaintiff or defendant, simply excludes

any reference to other awards of damages. I mean,

if you take the sort of paraplegic/quadriplegic

type cases, I would have thought it was not at all

unconunon for courts to look at comparable awards if

only to establish, as it were, some sort of either

ceiling or a base from which to work.

MR GALBALLY: With respect, I agree totally with what has

fallen from Your Honour's lips but that, of course, is perhaps the end of the tree, in effect, when one is looking at what might be, perhaps, the largest

sum for general damages for non-economic loss that

might be awarded or has been awarded, and so on.

The difficulty that one finds though is not at the

extremity but when you are looking at, if I can

call it "the run of the mill" type verdict where

there is a significant disability but not a

catastrophic injury.

TOOHEY J:	You can understand Full Courts not wanting to be bogged down in a morass of awards that have been
handed down but that is a different proposition to saying that the court will not look at what is said

Hipworth 6 11/3/94

to be comparable awards as some sort of guide to

either a minimum or a maximum figure.

McHUGH J:  How can you ever take into account jury verdicts,

anyway, because you do not know what the jury

found? Your opponent comes along with a list of

jury verdicts and he says, "Look how small this is
and, look, these were the injuries that are
claimed." You do not know what part of the

plaintiff's case the jury accepted or not.

MASON CJ: And they are not itemized anyhow, in many cases.

MR GALBALLY: But one would be able to do it, with respect,

where you have, for instance, simply an assessment

circumstance and we, with respect, would take the

view that it would not be difficult for an

appellate court to form some type of methodology

whereby the court would become appraised over a

period of time of a range of jury verdicts which were progressing or on a continuing basis in the

State, so that it would then not be necessary, to a large extent, to have to reargue these matters

because the court would, in effect, be fully

informed on a progressive basis of verdicts on a

contemporary basis.

McHUGH J: The adoption of this rule, I doubt, would be to

the advantage of plaintiffs, having regard to my

experience on the Court of Appeal in New South

Wales, where I always thought that jury verdicts

were, almost without exception, niggardly.

MR GALBALLY:  That has been exemplified in this State also,

Your Honour, up to the time that these legislative

changes came into existence. What has happened now

is that it has turned around because of the

recognition that you have a situation where,

because most plaintiffs are precluded from a

pecuniary loss claim, it is evident that there is

an element of distress or whatever you like to call

it in terms of that plaintiff being unable to

pursue his productive life. In terms of the way

these cases are now presented, that is argued as
another element in the non-economic loss aspect of

the case.

So, you have a new element altogether in the

non-economic loss component in these claims and

that is why we have argued in the Full Court that

it is really a new picture once you have

legislative prohibition on awards for pecuniary

loss because juries see the disabled plaintiff and

the fact that he has no basis for specific

pecuniary loss recovery but he does have,

obviously, the ongoing distress of not being able

Hipworth 11/3/94

to be a productive person, and that is reflected in

jury verdicts.

MCHUGH J: Illegitimately.

MR GALBALLY:  Not so, Your Honour, with respect, because if

a person loses the capacity to be able to look

after his family in the fashion that he had been

able to prior to the injury, surely that must sound

in some form of damages. So, that is really the

difficulty with cases such as this where you have a

plaintiff who, apart from the normal, traditional

aspects of the general damages claim, has this

additional head, we say, which means that you are

going to get significantly more for general damages

than you would have if there had been a pecuniary

loss claim.

We say the only way that that can be

demonstrated as being recognized in community

values is by the appeal court having before it a

demonstration of comparative verdicts.

MASON CJ: Thank you, Mr Galbally. The Court need not

trouble you, Mr Barnard.

Having regard to the way in which the case was

conducted in the court below, the Court considers

that it is not a suitable vehicle in which to

entertain a challenge to the correctness of the

views expressed by the Court in Planet Fisheries

Pty Ltd v La Rosa, (1968) 119 CLR 118, at page 124.

MR BARNARD:  We would ask for costs, if the Court pleases.

MASON CJ: Yes. You cannot oppose costs?

MR GALBALLY:  I have nothing to say on that matter,

Your Honour.

MASON CJ:

The application is refused with costs.

AT 10.45 AM THE MATTER WAS ADJOURNED SINE DIE

Hipworth 11/3/94