Kschammer v R W Piper and Sons Pty Ltd
[2003] WASCA 298 (S)
•3 DECEMBER 2003
KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 298 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 298 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:121/2002 | 19 & 23 SEPTEMBER 2003 | |
| Coram: | MALCOLM CJ | 3/12/03 | |
| 14/05/04 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appellant entitled to judgment in the action and on the appeal in accordance , with these reasons | ||
| A | |||
| PDF Version |
| Parties: | DENNIS KSCHAMMER R W PIPER & SONS PTY LTD ROBERT LINDSAY PIPER THE ANI CORPORATION LTD t/as STEELMARK SANDOVERS EAGLE AND GLOBE |
Catchwords: | Judgment and orders Question of terms of judgment referred to single Judge of the Full Court following appeal and grant of liberty to apply Credits in respect of payments on account of part payments of judgment sum |
Legislation: | Common Law Practice Act 1867 (Q) High Court Rules 1952 (Cth), O 43 r 3 Judiciary Act 1903 (Cth) Rules of the Supreme Court 1971 (WA), O 24A r 10(4), O 42 r 2 Supreme Court Act 1935 |
Case References: | Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306 BHP Steel Ltd v Kahn (No 2) [2001] NSWCA 269 Borthwick v Steamship Co Ltd (No 2) (1905) 2 KB 516 De Sales v Ingrilli (No 2) [2003] HCA 16; (2002) 212 CLR 338 Jorgensen v Olive [1985] 2 Qd R 168 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KSCHAMMER -v- R W PIPER & SONS PTY LTD & ORS [2003] WASCA 298 (S) CORAM : MALCOLM CJ HEARD : 19 & 23 SEPTEMBER 2003 DELIVERED : 3 DECEMBER 2003 SUPPLEMENTARY
DECISION : 14 MAY 2004 FILE NO/S : FUL 121 of 2002 BETWEEN : DENNIS KSCHAMMER
- Appellant (Plaintiff)
AND
R W PIPER & SONS PTY LTD
First Respondent (First Defendant)
ROBERT LINDSAY PIPER
Second Respondent (Second Defendant)
THE ANI CORPORATION LTD t/as STEELMARK SANDOVERS EAGLE AND GLOBE
Third Respondent (Third Defendant)
Catchwords:
Judgment and orders - Question of terms of judgment referred to single Judge of the Full Court following appeal and grant of liberty to apply - Credits in respect of payments on account of part payments of judgment sum
(Page 2)
Legislation:
Common Law Practice Act 1867 (Q)
High Court Rules1952 (Cth), O 43 r 3
Judiciary Act 1903 (Cth)
Rules of the Supreme Court 1971 (WA), O24A r 10(4), O 42 r 2
Supreme Court Act 1935
Result:
Appellant entitled to judgment in the action and on the appeal in accordance with these reasons
Category: A
Representation:
Counsel:
Appellant (Plaintiff) : Mr B L Nugawela &
Mr N P Lindsay
First Respondent (First Defendant) : Mr I T Blatchford
Second Respondent (Second Defendant) : Mr I T Blatchford
Third Respondent (Third Defendant) : Ms B A Mangan
Solicitors:
Appellant (Plaintiff) : Marks & Sands
First Respondent (First Defendant) : Greenland Brooksby
Second Respondent (Second Defendant) : Greenland Brooksby
Third Respondent (Third Defendant) : Phillips Fox
Case(s) referred to in judgment(s):
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306
(Page 3)
Case(s) also cited:
BHP Steel Ltd v Kahn (No 2) [2001] NSWCA 269
Borthwick v Steamship Co Ltd (No 2) (1905) 2 KB 516
De Sales v Ingrilli (No 2) [2003] HCA 16; (2002) 212 CLR 338
Jorgensen v Olive [1985] 2 Qd R 168
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
(Page 4)
1 MALCOLM CJ: These reasons relate to matters raised by way of liberty to apply to a single Judge of the Full Court following the delivery of the judgment of the Full Court on 3 December 2003 in Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298 by which the Full Court, constituted by myself, Murray and Parker JJ, allowed the appeal from a judgment in the District Court for damages against the first respondent ("the Piper Company"), the second respondent ("Mr Piper") and the third respondent ("ANI"). The damages as assessed by the learned trial Judge in the District Court amounted to $350,489.46 made up as follows:
Past gratuitous services $ 4,596.00
Interest thereon $ 827.28
Past economic loss $104,926.93
Interest thereon $ 5,558.35
Future economic loss $142,502.75
Future medical expenses including travel allowance
$ 17,045.00
Past travel expenses $ 4,088.00
Special damages $ 9,445.15
Interest thereon $ 1,500.00
General damages $ 60,000.00
Total $350,489.46
2 Her Honour reduced the damages by 35 per cent on account of the appellant's contributory negligence to $227,818.14. As between the three respondents, there was an apportionment of 65 per cent for the Piper Company and Mr Piper and 35 per cent for ANI. In the result, the judgment against the Piper Company and Mr Piper was for $148,081.80 and $79,736.34 against ANI.
3 On 3 December 2003, the Full Court ordered that the appeal be allowed; the judgment of the District Court dated 2 August 2002 be varied in accordance with the judgment of this Court; there be liberty to apply in respect of the final judgment sum, including an allowance for interest; the cross-appeals be dismissed; and that there be liberty to apply to a single Judge of the Full Court, namely myself, on the question of the costs of the trial and of the appeal.
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4 At the time that the reasons of the Full Court were published, it was clarified that the date of judgment referred to in par [177] of the reasons was the date of the judgment in the District Court, namely, 2 August 2002. It was also directed that the liberty to apply could be exercised by correspondence, subject to any party seeking to be heard at a formal sitting of the Court.
5 By a letter dated 6 January 2004, it was submitted by the solicitors for the appellant that the final amount of the judgment should be varied and entered for the appellant in the sum of $967,237.49 inclusive of interest. The details are set out as follows:
Past Economic Loss
6 At the trial, the appellant claimed $385.30 net of tax per week until 1 June 2000 when his business was sold. Thereafter he claimed $1345 net of tax per week until the age of 65. The past economic loss allowed on the appeal was calculated at $209,896.34. As the result of an error, this amount was reduced to $134,333.65 on account of income tax. The correct amount which should have been allowed was the $209,896.34. This has required an amendment to pars [176] and [177] of the reasons.
Future Economic Loss
7 The amount awarded by the trial Judge for future economic loss should be substituted by the sum of $513,010.
Loss of Goodwill
8 An additional amount of $38,000 should be awarded for loss of goodwill.
Past Special Damages
9 An additional amount of $33,712 should be awarded for past special damages in respect of recovery from HBF.
Future Special Damages
10 An additional amount of $7340 should be awarded for the nerve stimulator.
Gratuitous Services
11 The learned trial Judge at [337] awarded the appellant $980 for gratuitous services plus interest on that sum as claimed of $411. A further sum of $4649 plus interest of $1255 was awarded under this head at
(Page 6)
- [352]. Thus the learned Judge intended to award $7295 inclusive of interest. In the end result, however, at [379] her Honour only awarded $5423.28 inclusive of interest. This resulted in an arithmetical error of $1871.72 exclusive of interest. In my opinion, this additional amount should be added pursuant to the slip rule to make a total of $7295, together with interest on the sum of $1871.72 which counsel for the appellant should calculate.
Summary
12 It follows that the award of damages as at the date of judgment on 2 August 2002 should be varied as follows:
Past economic loss to the date of judgment
on 2 August 2002 (after discount of 5 per cent) $209,896.34
Future economic loss (after discount of 10 per cent) $513,010.00
Loss of good will $ 38,000.00
Past special damages $ 9445.15
interest $ 1500.00
$33,712.00 $ 44,657.15
Future special medical expenses $17,045.00
(including travel) $ 7340.00 $ 24,385.00
Gratuitous Services $ 4596.00 $ 7295.00
Past gratuitous services $ 827.28
And interest thereon $ 1871.72
Past travel expenses $ 4088.00
General damages $ 60,000.00
$901,331.49
13 It has been conceded on behalf of the appellant that, to avoid any dispute on the question whether the appellant is entitled to any interest on the special damages recouped from the Hospital Benefit Fund in the sum of $33,712, the appellant does not seek interest on that amount, so that interest should be calculated on the balance of the judgment sum, namely, $867,619.49.
14 On that basis, gross interest on the judgment sum to 10 February 2004 at 6 per cent for 1.5 years has been calculated at $78,085.75. In
(Page 7)
- accordance with the 65 per cent/35 per cent apportionment of liability, the first and second respondents are liable to pay interest in the sum of $50,755; and the third respondent $27,330 calculated and including 10 February 2004. These amounts require adjustment on account of the partial payments of damages made by the first and second respondent, namely $50,581.70 paid on 20 March 2003 and $486,168.02 paid on 20 January 2004. It follows that there should be a credit to the first and second respondent for these payments as at 11 February 2004 in the sum of $4465. It also follows that the net interest payable by the first and second respondents up to 10 February 2004 is $46,290. The total damage payable by the first and second respondents, namely, 65 per cent of $901,331.49 plus the net interest of $46,290 is $632,155.46 as at 10 February 2004. The judgment should be dated 10 February 2004.
15 Since 10 February 2004, interest payable by the first and second respondents has continued to accrue at the rate of 6 per cent per annum or $56.67 per week.
16 The third respondent has also made payments on account of the damages awarded, namely, $8170.92 on 19 March 2003; $5447.28 on 8 April 2003 and $13,618.20 on 10 May 2003, a total of $27,236.40. The appellant's counsel has proposed that the third respondent be credited as having paid that sum on 20 March 2003 for the purpose of the calculation of interest. The credit in that respect is $1498. It follows that the net interest payable by the third respondent up to 10 February 2004 is $25,832.
17 The total damage payable by the third respondent is 35 per cent of $901,331.49 plus $25,832 equals $341,298.02 as at 10 February 2004. From that date, interest on the amount of the judgment is payable at the rate of 6 per cent or $325.57 per week.
18 The final amount of the judgment as at 10 February 2004 is $973,453.49.
Costs of the Action
19 It was contended on behalf of the appellant that the respondents should pay the appellant's costs of the action, on a party and party basis up until 5 December 2001 and thereafter from 6 December 2001 on an indemnity basis. This contention was based on the appellant's notice of offer to compromise to the respondents dated 3 December 2001, by which the appellant offered to compromise his claim on the basis that all or any of the then defendants should pay the appellant $600,000 general damages
(Page 8)
- and the amount of his special damages, together with his costs of the action up to and including the date of acceptance of the offer to be taxed if not agreed.
20 By O24A r 10(4) of the Rules of the Supreme Court 1971 where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff is entitled to an order against the defendant for his costs in respect of the claim from the date on which the order was made, to be taxed on an indemnity basis, in addition to his costs incurred before that date, taxed on a party and party basis. It follows that the appellant is entitled to such an order in the present case.
21 As a result of the appellant's offer under O 24A of the Rules of the Supreme Court 1971 dated 3 December 2001, receipt of which was acknowledged by the first and second respondents by the solicitors for the first and second respondents on 5 December 2001 and by the solicitors for the third respondent on 6 December 2001, there should be an order that the first and second respondents pay 65 per cent of the appellant's costs of the action on a party and party basis up to 5 December 2001 and thereafter on and from 6 December 2001 on an indemnity basis.
22 It was submitted on behalf of the first and second respondents that the appellant's proposal was inconsistent with O 42 r 2 of the Rules of the Supreme Court 1971 which provides in subpara (1) that a judgment or order takes effect from the day of its date. Subpara (2) provides that the judgment shall be dated as of the day it is pronounced, unless the Court orders that it be dated "as of some earlier or later day, in which case it shall be dated as of that other day".
23 The judgment of an appellate court by which the judgment below is varied takes effect from the date on which the judgment is pronounced, unless the Court exercises its discretion under rule 42(2). The judgment on an appeal is not for all purposes the judgment of the Court below and takes effect on its own pronouncement unless the Court exercises its discretion to ante date it: Nicol v Allyacht Spars Pty Ltd (No 2)(1988) 165 CLR 306 at 311 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ. In that case, the High Court allowed an appeal from the Full Court of the Supreme Court of Queensland which had dismissed an appeal by the appellant against the dismissal of his claim for damages in that Court. The High Court allowed the appeal and gave judgment for the appellant for damages "together with interest". The appellant was given
(Page 9)
- liberty to apply on the subject of interest. O 43 r 3 of the High Court Rules contained a rule in similar terms to O 42 r 2 of the Rules of the Supreme Court applicable in this Court. The High Court concluded that, while s 73 of the Judiciary Act 1903 (Cth) did not make the High Court order equivalent to a judgment of the Supreme Court taking effect from 3 April 1986 when that Court's judgment was pronounced, so as to entitle the appellant to interest under s 73(1) of the Common Law Practice Act 1867 (Q) from that date, the power of the High Court to "give such judgment as ought to have been given in the first instance" authorised the High Court to order interest pursuant to s 72 of the Common Law Practice Act from 3 April 1986 to 6 November 1987, the latter being the date of judgment by the High Court.
24 In my opinion, when an appeal against an award of damages is allowed, it is clearly open to the Full Court to give a judgment which will put the appellant in the same position as he would have been in had the additional damages awarded on appeal been awarded at first instance. Consequently, it would be appropriate to include in the award interest on any additional damages awarded on appeal calculated from the date of the judgment in the District Court, namely, 2 August 2002.
25 Section 142(1) of the Supreme Court Act 1935 (WA) provides that every judgment debt shall carry interest at a percentage rate as the Treasurer from time to time determines by a notice published in the Government Gazette. The current rate is 6 per cent fixed by a notice published in the Government Gazette dated 12 September 1997, p5159.
26 Consequently, I direct that the judgment below be varied by the inclusion of an order for payment of interest on the additional amounts of damages awarded by the Full Court at the rate of 6 per cent per annum from 2 August 2002. The effect of the decision in Nicol v Allyacht Spars (supra) is that the appellant who succeeds on appeal ought to be put in the same position that he would have been in had the damages been included in the original award both in terms of quantum and the interest thereon.
Costs of the Appeal and Cross-Appeals
27 The appellant seeks an order for the costs of the appeal from 3 August 2002 (the day after the trial) until 10 December 2003 on an indemnity basis, as a consequence of the O24A offer, together with a certificate for two counsel for the first day of the hearing of the appeal on 19 September 2003. In my opinion, the appellant is clearly entitled to that order.
(Page 10)
Orders on the Appeal
28 It follows that the appellant is entitled to the following orders:
1. The appeal be allowed.
2. The judgment of the District Court dated 2 August 2002 be varied so that:
2.1 the first and second respondents (defendants) pay the appellant (plaintiff) damages in the sum of $632,155.46 inclusive of interest payable up to 10 February 2004;
2.2 the third respondent (defendant) pay the appellant (plaintiff) damages in the sum of $341,298.02 inclusive of interest payable up to 10 February 2004;
2.3 the respondents (defendants) pay the appellant's costs of the action to be taxed on a party and party basis up to and including 5 December 2001 and thereafter on an indemnity basis;
3.1 the respondents' (defendants') cross-appeals be dismissed;
3.2 the respondents (defendants) pay the appellant's (plaintiff's) costs of the appeal and cross-appeals to be taxed on an indemnity basis;
3.3 there be a certificate for two counsel in respect of the first day of the hearing of this appeal before the Full Court.
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