Hyne and Son Pty Ltd v Hochmuth

[1997] QCA 108

IN THE COURT OF APPEAL	[1997] QCA 108
SUPREME COURT OF QUEENSLAND

Appeal No. 3725 of 1996

Brisbane

[Hyne & Son P/L v. Hochmuth]

BETWEEN:

HYNE & SON PTY. LIMITED

ACN 009 660 995

(Defendant) Appellant

AND:

JASON SCOTT HOCHMUTH

(Plaintiff) Respondent

Davies J.A.
McPherson J.A.

Mackenzie J.

Judgment delivered 9 May 1997

Joint reasons for judgment of Davies J.A. and Mackenzie J.; separate reasons of McPherson J.A. concurring as to the orders made.

APPEAL ALLOWED. JUDGMENT BELOW SET ASIDE AND SUBSTITUTE IN LIEU JUDGMENT FOR THE RESPONDENT FOR THE SUM OF $180,664.53 WITH COSTS. APPELLANT TO HAVE ITS COSTS OF THIS APPEAL.

CATCHWORDS:	PERSONAL INJURIES - assessment of damages - future economic loss.
Counsel:	Mr. K. S. Howe for the appellant Mr. R. Morton for the respondent
Solicitors:	Hill & Taylor for the appellant Paul Everingham & Co. for the respondent
Hearing Date:	7 April 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3725 of 1996

Brisbane

Before Davies J.A.
McPherson J.A.
Mackenzie J.

[Hyne & Son P/L v. Hochmuth]

BETWEEN:

HYNE & SON PTY. LIMITED

ACN 009 660 995

(Defendant) Appellant

AND:

JASON SCOTT HOCHMUTH

(Plaintiff) Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MACKENZIE J.

Judgment delivered 9 May 1997

This is an appeal against a judgment of the Supreme Court but, in effect, against an assessment

of damages by a District Court Judge in a matter referred to that court for assessment of damages. The

notice of appeal misdescribes it as an appeal against a judgment of the District Court but it was not

contended that this was not a competent appeal against the judgment which we have mentioned. The

total assessment, before deduction of Workers' Compensation payments, was $308,251.53 but the

appeal is only against a component of $185,000 described as being for future economic loss. The

appellant is and was at all material times the respondent's employer and it was during the course of his

employment with the appellant that the respondent suffered the injury for which the damages were
awarded.

There is no doubt that the respondent is a young man with a seriously disabling injury. At trial

he was still only 27 years of age and he has suffered a 50 percent loss of efficient function of his left

(non-dominant) hand in consequence of the amputation of some of his fingers in a sawmilling accident.

However at the time of trial he remained employed by his former employer, though as a fork lift driver

rather than a sawyer, with a consequent loss in weekly salary of $26.82. It is plain that the award of

damages for future economic loss is not merely for this sum over his future working life but, for the most

part, for the risk that he will lose his present employment and be thrown onto the open labour market

with the likelihood that, if he is, he will not again find employment.

The appellant's main criticism of the amount assessed for future economic loss is that it was

calculated by the learned District Court Judge on the basis that it represented the present value of a total

loss of earning capacity for the respondent on the assumption that he would lose his present employment

in five years time; that is, it assumed as a certainty that the respondent would be unemployed in five

years time and would thereafter remain permanently unemployable. However, it was submitted, the

evidence did not establish this as even a probability; rather that it was a mere possibility that this would

occur. It was submitted that this assessment was inconsistent with the learned District Court Judge's

findings that there were "very significant risks, a real possibility if not a probability, that the [respondent]

could, in the future, for one reason or another, cease to be employed by the [appellant]" and that "there

is a risk that the [respondent] will, not in the short term but in the long term, be thrown onto the open

labour market".

There is no doubt that his Honour appears to have assessed this sum on the basis contended

for by the appellant. Indeed the respondent does not argue to the contrary but submits that, in arriving

at this sum, his Honour discounted twice and that the correct figure, on this basis, was between approximately $225,000 and approximately $246,000. Consequently, it was submitted, although the

basis upon which his Honour may have assessed this sum was wrong, the actual assessment did not take

the total award of damages outside the appropriate range.

It is common ground between the parties in this Court that, on the basis on which the learned

District Court Judge must have assessed this component, the correct figure should have been in the

range contended for by the respondent. The questions then are whether, on the facts before his Honour

or the findings which he made, the amount of $185,000 was too high, and if so, whether the extent to

which it was made the total award too high.

The evidence revealed some uncertainty about the future of the sawmill operated by the

appellant in which the respondent was employed. Whilst Mr. Forbes, who gave evidence on behalf of

the mill, said, in effect, that he thought that the mill would continue indefinitely and that the respondent's

employment there was secure, other statements made by him appear to show less optimism about the

future of the mill. And an expert consultant Mr. Shield pointed to a number of factors operating in

Australia all of which will reduce the viability of native hardwood mills (of which this was one)

particularly in rural areas such as this. Moreover, as was pointed out by counsel for the respondent,

because the respondent was disabled he would be less secure in his job than other employees if staff

numbers are reduced. After hearing both of these witnesses whom he thought were competent, genuine

and sincere, his Honour made the findings which we have quoted and added that the consequences for

the respondent of being thrown on the open labour market would be dire because, unless he could find

a sympathetic employer, he would be most unlikely to obtain work.

We do not think that those conclusions can be challenged; nor do we think that the appellant

seriously sought to do so. Its final submission was that the amount which the learned primary Judge

assessed allowed not for a real possibility that, in the long term, the respondent would be thrown onto

the open labour market but for a high probability that, in five years time that is what would occur. In

our view that submission should be accepted. If, as was common ground, a sum in the vicinity of

$235,000 represented a certainty that the respondent would be unemployed in five years time, a sum

of $185,000 plainly represented a high probability that that would occur. And, given the respondent's

young age, the period of five years represents, in our view, a short term rather than a long one.

Consequently the assessment under this heading was inconsistent with his Honour's findings and,

in our view, so high as to justify interference. We would substitute for the sum of $185,000 the sum of

$120,000 making the total assessment, before the deduction of Workers' Compensation payments

$243,251.53 and, after deduction of those payments $180,664.53.

We would accordingly allow the appeal, set aside the judgment below and substitute in lieu

judgment for the respondent for the sum of $180,664.53 with costs. The appellant should have its costs

of this appeal.

We have read the reasons for judgment of McPherson J.A. Whatever may have been the

historical origins of the procedure contained in O.39 r.52 and the following rules, the procedure by way

of writ of inquiry having been abolished we can see no basis for importing into the current procedure

a requirement that, in allowing an appeal from a judgment of the kind here given, the assessment made

by the District Court Judge should be set aside or varied. The reasons for judgment adequately explain

why the judgment is interfered with or varied.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No.3725 of 1996

Brisbane

Before Davies J.A.
McPherson J.A.
Mackenzie J.

[Hyne & Son P/L v. Hochmuth]

BETWEEN:

HYNE & SON PTY. LTD. (A.C.N. 009 660 995)

(Defendant) Appellant

AND:

JASON SCOTT HOCHMUTH

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 9 May 1997

I agree with the joint reasons given by Davies J.A. and Mackenzie J. for varying the assessment

to the extent they propose.

I am, however, concerned about the form which the order giving effect to that result should

take. The amount of damages that we are proposing to vary was arrived at after an assessment by

Botting D.C.J. in the District Court at Maryborough pursuant to an order under O.39, r.52 in an action

commenced in the Supreme Court. Having on 25 March 1996 made the assessment as directed, the

District Court judge certified it under O.39, r.53. The certificate was filed in the Supreme Court Registry as required by that rule, and on 19 April 1996 judgment for the plaintiff was given by Thomas

J. on a motion in the Supreme Court for the total amount so assessed, which was $245,664.53.

The notice of appeal is directed to the judgment, as it is described, by Botting D.C.J. given in

the District Court on 25 March 1966. This does not seem to me to be correct in form because the only

judgment capable of being appealed against is that given by Thomas J. on 19 April 1966 after the

certificate of assessment was filed. If, in this Court, only the amount of the assessment is altered, the

judgment in the Supreme Court for $245,664.53 will continue to stand unless something is done about

it on this appeal.

The procedure under O.39, r.52 of the Rules of the Supreme Court has its origin in the old writ

of inquiry, by means of which the amount of damages following a judgment in default in a superior court

at common law was directed to be assessed by a sheriff’s jury. When the procedure was adopted in

Queensland from New South Wales by ss.64 to 69 of the Common Law Practice Act 1867, s.65 of

that Act provided that the writ of inquiry should be directed to the sheriff, to a commissioner, or to a

judge of District Courts. The Rules of the Supreme Court continued to speak of writs of inquiry until

1965, when they were abolished by the amending rules which took effect in 1966.

Nothing was done at any time to provide for an appeal against such an assessment, and an

assessment of damages, as distinct from a judgment or order for the amount of the assessment, is not

a matter over which the appellate jurisdiction of this Court extends either under O.70 of the Rules or,

for that matter, under s.118(1) (as it has now become) of the District Courts Act 1967, which refers

only to an appeal against a final judgment. It is not possible to regard it as an interlocutory judgment

of the District Court for the purpose of s.118(2) because it is not a judgment at all, but simply an

assessment. Nevertheless, under the old procedure in England by writs of inquiry, which were abolished there in 1883, there was a jurisdiction to set aside an assessment of damages on an

application for a new trial. The verdict was regarded as the verdict of a jury (which is what it was)

capable of being set aside on the ground that the amount assessed was manifestly excessive or

inadequate. See Markham v. Middleton (1745) 7 Strange 1259; 93 E.R. 1167. The practice of

setting aside the verdict was recognised in Queensland by the terms of s.69 of the Common Law

Practice Act 1867.

Before the Judicature Act 1876 a final judgment in an action at common law could be entered

only before the Full Court sitting in banc. It was an occasion on which the defendant to the action

could move to set aside a verdict given against him and ask the Court for a new trial. The power to set

aside an assessment as if it were a verdict given on a writ of inquiry or on an order under O.39, r.52

is now exercisable by this Court, together with all other powers of the Full Court including the powers

under O.70, rr.11 and 26 of giving in this Court such judgments as ought to have been given without

ordering a new trial of an issue such as the quantum of damages.

It seems to me that this is the power that we are now asked and ought to exercise. As I have

said, the notice of appeal is, as I see it, incorrectly directed to the “judgment” of Botting D.C.J. making

the assessment in the District Court on 25 March 1996, whereas it should have been directed to the

consequential judgment given in the Supreme Court on 19 April 1996. No point was taken with respect

to that defect in the notice of appeal, and at the hearing in this Court it passed unnoticed. The matter is,

in the end, one of form only, by which neither party has been prejudiced. It is, however, necessary to

ensure that the process is corrected, so that it is the judgment in the Supreme Court that is varied and

not simply the assessment as certified. Acting under O.93, r.17, I would therefore allow the appeal by

varying the judgment given in the Supreme Court in favour of the plaintiff for $245,664.53 by reducing the amount of it [and of the assessment on which it is based] to $180,664.53. The respondent should

be ordered to pay the costs of the appeal.