Nunn v Hardcastle
[2001] WASCA 428
•20 DECEMBER 2001
NUNN -v- HARDCASTLE [2001] WASCA 428
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 428 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:129/2000 | 8 JUNE 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 20/12/01 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Damages award increased by the sum of $32,000 Cross-appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ADRIAN LEITH NUNN PHILLIP HOBSON HARDCASTLE |
Catchwords: | Damages Appeal Measure and remoteness of damages Medical Negligence Personal injuries Appeal |
Legislation: | Nil |
Case References: | Medlin v State Government Insurance Commission (1995) 182 CLR 1 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 9700650; 11 March 1997 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Wilson v Peisley (1975) 7 ALR 571 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : NUNN -v- HARDCASTLE [2001] WASCA 428 CORAM : KENNEDY J
- WALLWORK J
STEYTLER J
- Appellant
AND
PHILLIP HOBSON HARDCASTLE
Respondent
Catchwords:
Damages - Appeal - Measure and remoteness of damages - Medical Negligence - Personal injuries - Appeal
Legislation:
Nil
Result:
Appeal allowed
Damages award increased by the sum of $32,000
Cross-appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr D Wallace
Solicitors:
Appellant : Macdonald Rudder
Respondent : Edwards Wallace
Case(s) referred to in judgment(s):
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 9700650; 11 March 1997
Case(s) also cited:
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Wilson v Peisley (1975) 7 ALR 571
(Page 3)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Wallwork J. Subject to the following observations, I am in agreement with his Honour's reasons and with the orders which he proposes.
2 I would allow the cross-appeal in relation to the allowance of $4,000 by way of general damages to reflect the fact that at some future time there is a possibility that the appellant may choose to undergo further surgery to have the straps and screws which are presently in his back removed and to take account of a period of time for the recovery by the appellant from that surgery if it eventuates.
3 In my opinion, the evidence does not support a finding that the removal of the GRAF implants is a serious possibility.
4 The evidence of Mr R Vaughan, a neurosurgeon, was the only investigation which cannot be performed by reason of the GRAF implants is an MRI, but all other methods of investigation can be utilised. In Mr Vaughan's opinion, the implant should not be removed solely to allow an MRI to be undertaken. He also expressed the view that the removal of the implants without doing another procedure at the same time is unlikely to improve the appellant's symptoms and that an operation simply to remove the implants could exacerbate the situation by worsening the condition of the muscle mass.
5 Professor R D Fraser did not advise that the implants would have to be removed in order to achieve pain relief, and he was also of the opinion that the removal of the implants on their own would not assist the appellant and may make his symptoms worse.
6 Mr S J Ruff indicated that the removal of the GRAF system was unlikely to assist the appellant.
7 As counsel for the respondent pointed out, none of the experts recommend that the implants should be removed simply to allow an MRI to be done, as this would risk worsening the symptoms. In addition, evidence of the appellant was such as to indicate his attitude to future surgery was such that he was most unlikely to undergo it. In my opinion, an award of $30,000 for pain, suffering and loss of amenities is sufficient in this case to include a modest amount to compensate for the unlikely possibility of the appellant undergoing a further operation for the removal of the GRAF implants.
(Page 4)
8 WALLWORK J: The appellant obtained a judgment for damages in the District Court at Perth on 7 July 2000 arising from a GRAF procedure which had been performed on his back by the respondent. The learned Judge found that the appellant would not, or very likely would not, have undergone the procedure if he had been advised of certain specific information by the respondent. The Judge found that the appellant was entitled to an award of damages for the three month period from mid to late January 1993 to the time of his review by the respondent in April 1993, by which time the learned Judge considered that the appellant had overcome the effects of undergoing the GRAF procedure. The appellant contends that the learned Judge did not award sufficient damages for a number of aspects of the claim.
9 It is firstly contended that the learned Judge's assessment of general damages at $12,000 was below the range of a proper discretionary judgment. That sum of $12,000 was comprised of two components, being the sum of $8000 for pain and suffering and loss of amenities, plus a further $4000 to reflect the fact that at some future time there is a possibility that the appellant may choose to undergo further surgery to have the straps and screws which are presently in his back removed. The sum of $4000 was also to take into account a period of time for the recovery by the appellant from that surgery if it eventuates.
10 The appellant complains that in the abovementioned sum of $8000 the learned Judge did not take into account the fact that the appellant had undergone a very serious operation. It is claimed that the learned Judge found that the appellant had suffered pain and inconvenience following the surgery and during the course of the following three months of recovery, but did not award damages for the undergoing of the operation itself.
11 In my view the appellant's contention in this regard should be upheld. The learned Judge, under the heading of general damages, said:
"I find that the plaintiff did suffer pain and inconvenience immediately following the surgery and during the course of the following three months of post-operative recovery until he was reviewed by the defendant at Hamilton Island. Following surgery the wound site wept and required some additional care by way of changing of dressings. The return air trip to Queensland from Perth (where the operation was performed) was, I accept, very uncomfortable for the plaintiff. Upon his return home I find that he was more than usually restricted for
(Page 5)
- the three month period in question and that he was less able to carry out physical activity such as walking and running and no doubt sleeping was uncomfortable during that period of time as well. The plaintiff suffered severe constipation resulting in both pain and embarrassment. No doubt he also experienced a degree of frustration in that he required more than usual assistance in carrying out tasks such as dressing and bathing himself. I consider that taking into account these particular restrictions and the associated pain and inconvenience that an award of $8000 in general damages reflects the difficulties suffered by the plaintiff during this time."
12 It appears from the above remarks that the learned Judge did not take into account the fact that the appellant had undergone a serious operation with all its attendant risks. It is relevant that her Honour found that the appellant would not have undergone the operation had he been given the correct information prior to agreeing to it.
13 There is another aspect to the assessment of the general damages and that is that due to the positioning of the straps and screws in the appellant's back, an MRI procedure cannot now be undertaken to locate the source of the appellant's pain, which is about the same now as it was prior to the operation. The appellant has lost a chance of his pain being alleviated as the MRI procedure cannot be undertaken unless the straps and screws which are presently in position, have been removed. Removing the apparatus could also weaken the muscles in the appellant's back and cause further complications.
14 There is a third aspect of the general damages for which the learned trial Judge, in my opinion, did not allow sufficient damages. That is that since the operation the appellant has visited various parts of Australia, including Perth, Adelaide, Melbourne and Brisbane, to investigate what can be done to remedy his situation. It is fair on all the evidence to award some damages to the appellant to compensate him for the worry and unnecessary trouble which he has had to go through following from the initial operation.
15 Counsel for the appellant put it this way:
"So even accepting that the pain, as her Honour found, was the same as it was pre-accident, there is still that three months of extreme pain, there is still the ongoing concern and worry because this treatment that had been recommended, that he had
(Page 6)
- undergone, was not working. He had required further treatment from this doctor because the GRAF procedure hadn't worked … He may have had the pain before, but he had undergone all these other problems and you have to look at the mental anguish that this man is undergoing. He thought he was going to be fixed … and of course he has these two bands, these screws in his spine…"
16 The present situation is summed up by Mr Ruff's opinion that Mr Nunn may require further treatment and this should include a removal of the GRAF instrumentation followed by provocative blocks in his lower axial skeleton in an attempt to identify a pain generator that may be helped by spinal stabilisation in the form of fusion.
17 Mr Vaughan in his evidence did not advocate operative treatment, partly due to the possible damage to the muscles which might eventuate; also he had a query as to whether it was necessary. When considering the possibility of further operative treatment, Mr Vaughan said:
"The patient is usually quite sore with a removal procedure and requires hospital management for a period of at least three to five days; a muscle spasm from the operation not usually settling for a period of the order of three weeks. The period away from work would be of the order of three to six weeks, depending on the type of work."
18 In my opinion the award of $8000 for the appellant's pain, suffering and loss of amenities was inadequate and a sum in the order of $30,000 would have been more appropriate for that aspect of the general damages.
19 The principles concerning the approach of an appeal court to an appeal against the quantum of damages were discussed by Ipp J in State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 9700650; 11 March 1997. In his reasons in that case, Ipp J said:
"In Wilson v Peisley (1975) 50 ALJR 207, Mason J said at 214:
'The settled rule then is, that an appellate court will not disturb the primary Judge's award of damages for personal injuries 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
(Page 7)
- or so inordinately high as to be a wholly erroneous estimate of the damage suffered.'
- In Gamser v The Nominal Defendant (1977) 136 CLR 145, Aickin J said, at 159 - 160:
'In my opinion the proper approach to this case is to look at the total sum awarded as general damages and at all the circumstances, the pain and suffering, past, present and future, the physical disabilities, the medical and psychological problems which are inevitable for the future, the effect on earning capacity and the kinds of additional costs which the appellant will necessarily incur, and to ask oneself whether the sum of $150,000 is "out of all reason" or "wholly disproportionate" to the circumstances.'
In Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, Cooper J, at 346, said:
'Thus although an assessing Judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated. … It is the allocation of particular sums which disclose the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum. … That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt.' "
"These principles are particularly pertinent in a case such as the present, where the damages award is relatively high and is made up of several components, the majority of which are based on discretionary considerations. … In these circumstances there is considerable room for individual choice in regard to a multitude of factors. It may well be that in regard to certain particular components of the award, the appellate tribunal might consider that the trial Judge, without acting on a wrong principle of law or misapprehending the facts, has
(Page 8)
- awarded too much or too little. Where errors falling into that category lead to relatively insignificant increases or reductions in the overall sum awarded, the appeal court will not normally interfere. In regard to issues of that kind the question is whether the total sum awarded is outside the limits of a sound discretionary judgment, and not whether some portion of that total sum standing alone would call for the court's intervention. On the other hand, it may be that a component of an award is held to be wrong, not because of discretionary matters, but because the trial Judge has acted upon some erroneous principle or upon some mistake or fact."
21 Applying the above principles and before deciding on the outcome of the appeal, it is necessary to look at the other grounds of appeal.
22 Ground 2 of the appeal concerns loss of earning capacity. Under that ground there is a claim for loss of earning capacity in the event of the appellant having to undergo any further surgery to his lumbar spine.
23 On all the evidence, the situation concerning any future operative treatment is quite uncertain. As Kennedy J has stated in his reasons for judgment:
"The evidence of Mr R Vaughan, a neurosurgeon, was that the only investigation which cannot be performed by reason of the GRAF implants is an MRI, but all other methods of investigation can be utilised. In Mr Vaughan's opinion, the implant should not be removed solely to allow an MRI to be undertaken. He also expressed the view that the removal of the implants without doing another procedure at the same time is unlikely to improve the appellant's symptoms and that an operation simply to remove the implants could exacerbate the situation by worsening the condition of the muscle mass.
Professor R D Fraser did not advise that the implants would have to be removed in order to achieve pain relief, and he was also of the opinion that the removal of the implants on their own would not assist the appellant and may make his symptoms worse.
Mr S J Ruff indicated that the removal of the GRAF system was unlikely to assist the appellant."
(Page 9)
24 Ground 2 of the appeal, in so far as it asserts that the learned Judge erred in not awarding damages for loss of earning capacity because the probabilities are that the appellant will have to undergo further surgery, has not in my opinion, been established. However I would not interfere with the $4000 which the learned Judge awarded to reflect the possibility that the appellant may choose to undergo further surgery to remove the GRAF straps and screws in the future. This is because Mr Vaughan, when asked what could be done to assist the appellant said:
"I think I made a recommendation that nothing would be certain, but to retest it by further functional films and perhaps discography and/or other areas of block to see whether a precise pain generator may be established and then to advise accordingly."
25 Mr Vaughan also said that the deterioration in the appellant's back will continue to occur with ordinary degeneration. He then said:
"I think the main concern I would have is still the uncertainty of the diagnosis but also that the level above appears to be undergoing degeneration and I think there is report of a slight degree of retro aesthesis when the number 3 is moving just slightly back on number 4 indicating there is degeneration in the joints at that level and that could be a further pain driver in the future … if there's one joint primarily the cause of a pain, that would raise that (pain at one place in his back) as the probability, but what to do about that becomes the next best question. Should that then diffuse … you'd have to go through all those decisions and proffer the best advice you could."
26 Ground 3 of the appeal concerns the award for past economic loss.
27 The learned trial Judge was in a very difficult position in this regard insofar as the appellant at all relevant times was self-employed with complicated business arrangements. The Judge said:
"The accountant, Mr Rigby, was given no information which permitted him to give evidence concerning the plaintiff's annual taxable income for the years proceeding his surgery. On the information available to him the best he could say was that the plaintiff's annual taxable income for the years ending June 1993 to 1997 was $86,463. On the findings that have been made the plaintiff was therefore unable to earn this income for a period of three months or one quarter of a year whilst he was recovering
(Page 10)
- from the effects of surgery between late January and April 1993. The past economic loss for this period is therefore 25 per cent of $86,463 being $21,615. In all the circumstances I consider it reasonable to apply a figure of 5 per cent interest to past economic loss which is therefore 5 percent x $21,615 x 7.5 years = $8105."
28 The appellant contends that the learned Judge awarded damages for past economic loss for three months, whereas there should have been further compensation because of the appellant's ongoing search for treatment which has clearly kept him away from his business. It was submitted that although the appellant was self-employed in the building industry and that there were difficulties in calculating the amount concerned, the amount awarded in this regard had been insufficient. It was agreed that the appropriate sum was not capable of precise calculation.
29 On the other hand, the respondent submitted that there should have been no award for pass loss of earning capacity because there had simply been insufficient evidence to establish what the loss of earning capacity was. In any event, it was said that three months loss had been allowed, whereas between the time of the operation and when the appellant returned to work was a period of only two months, and not three months as allowed by the learned Judge.
30 At the trial there was no evidence called as to whether the appellant had engaged someone to replace him for the time he had been away or concerning the effect which his absence had had on his income. Reference was made to the reasons of the Justices of the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1, where at 3 in the joint judgment of Deane, Dawson, Toohey and Gaudron JJ their Honours said:
"A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is
(Page 11)
- that 'the diminution of … earning capacity is or may be productive of financial loss'".
31 It was submitted for the respondent that there has to be a loss of income demonstrated by a plaintiff seeking damages and that that had not occurred in this case.
32 At the hearing of the appeal the appellant produced a schedule of "further past economic loss" dated 8 June 2001 which sets out details of approximately 24 days when the appellant was absent from his business seeking further advice arising from the admittedly compensable GRAF procedure. It was conceded that the figures were approximate. However, it was claimed that conservatively the appellant was due an extra month's loss, being $7000 plus $2625 interest, making an additional sum of $9625.
33 The questions arising can be considered firstly by deciding whether her Honour was correct in acting on the basis that the appellant's average taxable income over four years was $86,463.
34 In Professor Luntz's "Assessment of Damages for Personal Injury and Death", 3rd ed at page 98 it is said:
"Numerous cases in the High Court and elsewhere have held that where it is clear that the plaintiff has suffered some real loss, the court must do its best to place a value on that loss, despite the paucity or even absence of evidence on the point. It depends to some extent on the availability of such evidence to the plaintiff. The consequence of a failure to lead evidence which should have been readily available is that the plaintiff cannot complain if the damages assessed are too small to cover the actual situation … but the Court is not precluded from making a substantial award even in such a case. Thus it is noteworthy that in Minchin's case, Barwick CJ nevertheless dissented from the decision to deny the appeal on the ground of inadequacy of damages because, even in the absence of evidence, something had to be allowed for economic loss due to the loss of security and of a pension the plaintiff would have enjoyed as a public servant; and also for the maintenance and replacement of his artificial limb, thought the costs were not proved. So, too, in Layton v Welsh (1978) 19 ALR 594 … the Court was prepared to draw 'brave inferences' … as to the cost of necessary treatment for the plaintiff."
(Page 12)
35 Professor Luntz states at page 99:
"In National Instruments Pty Ltd v Gilles (1975) 49 ALJR 349 where a law student was severely injured, the Court was apparently not even provided with a precise level of earnings of a solicitor. In this case it was the defendant who sought to complain that the consequent award was too high but it was held that the trial Judge was entitled to act on the juror's knowledge that a solicitor in private practice is able to earn a considerable income."
36 In my view it is apparent that in the present case her Honour was doing the best she could with the information she had been given, and it could not be said that the award should not have been made. However, I note that the calculations were made on a gross income basis instead of net income.
37 In all the circumstances I would not interfere with the learned Judge's assessment under this heading, either by reducing it or by adding the additional $9625 claimed by the appellant for an extra month's absence from his business affairs. I note that sum is also claimed on a gross basis.
38 Ground 4 of the appeal concerned the special damages which were allowed.
39 The appellant referred to a schedule dated 8 June 2001 of special damages claimed. That schedule details various expenses for the period 24 May 1993 to 18 November 1998. The appellant claims that all the expenses in the schedule were incurred when the appellant was trying to find out what he could do about his condition after he had discovered that the GRAF procedure had not alleviated his symptoms.
40 The respondent, on the other hand, claims that there is no basis on which any further special damages should be awarded. The respondent contends that the learned Judge found that the overwhelming evidence was that the appellant's pain state was no worse after the three months period for which damages were allowed than it had been before the procedure had been carried out.
41 The learned Judge said:
"In these reasons I do not attempt to suggest, and indeed it is not argued to the contrary on behalf of the defendant, that the plaintiff does not suffer a genuine pain state that has a number
(Page 13)
- of debilitating aspects. On all of the evidence, however, for the reasons stated, I do not find that the plaintiff's current pain state has been caused by or contributed to in any way by the GRAF procedure, save for the three month post-operative period when he was recovering from undergoing surgery which as I have found he would not, or very likely would not, have undergone if he had been advised of certain specific information by the defendant. The plaintiff is therefore entitled to an award of damages under various heads of damage for that three month period from mid to late January 1993 to the time of his review by the defendant at Hamilton Island in April 1993 when I consider that the plaintiff had overcome the effects of undergoing the GRAF procedure."
42 The learned Judge also said:
"On the evidence I do not find that after the three month post-operative recuperation period the plaintiff has been any more restricted in his physical and social/recreational activities than he was prior to the surgery."
43 There does not appear to have been any allowance made in the damages awarded, for the appellant's efforts to investigate what could be done following the GRAF procedure, which he would "very likely would not have undergone if he had been advised of certain specific information by the defendant."
44 In my opinion the appellant should have been awarded a sum to compensate him for the reasonable costs of investigating what he could do to overcome his situation.
45 A problem with the schedule which the appellant has provided for the additional special damages claimed is that it includes various expenses for airlines and hotel expenses which the appellant incurred whilst accompanied by his wife and perhaps a child. I would therefore reduce the airline expenses and the hotel expenses claimed by half. That would reduce the additional amount claimed from $11,627 to $7982. There should also be interest allowed on that sum calculated at $2095 on the same basis as calculated by her Honour, making a total additional sum for special damages and interest of $10,000 in round figures.
46 It can be seen from the above reasons that in my view the general damages for loss of amenities, pain and suffering were approximately
(Page 14)
- $22,000 too little. Then there should be added a further $10,000 for the additional special damages, making an additional total of $32,000.
47 Applying the principles discussed by Justice Ipp which are referred to earlier in these reasons, I would allow the appeal and increase the damages awarded by that sum of $32,000.
48 With respect to the grounds of the cross-appeal, they have already been discussed to some extent under the headings of past loss of earning capacity and the aspect of the general damages concerned with the award of $4000 to take into account the possibility that the appellant might, in the future, undergo surgery to remove the GRAF implants.
49 It should be noted that the respondent contended that there should have been no allowance for any possible future procedures for the following reasons, amongst others:
(a) Professor Frazer said in evidence that the removal of the implants will not assist the appellant and may make his symptoms worse.
(b) Mr Vaughan gave evidence that it would be an extremely significant operation to remove the implants for the purpose of doing an MRI; further that the removal of the implants would be unlikely to make any difference to the appellant's symptoms.
(c) Dr Ruff said that the removal of the GRAF implants would be unlikely to assist the appellant.
(d) the appellant has given evidence that he does not intend to undergo surgery to remove the implants.
50 In my view, having regard to all the evidence, the respondent has not demonstrated that the trial Judge erred in her assessment of the damages for the possible future operative procedure or in the assessment of the damages for the loss of the appellant's earning capacity. I would therefore dismiss the cross-appeal.
51 The final question argued was whether the learned Judge erred in awarding the appellant only 70 per cent of his costs.
52 In coming to the decision to award only 70 per cent of costs to the appellant, the learned Judge noted that it had been conceded by the appellant that the general rule pursuant to O 66 r 1(1), whereby a successful party can recover his or her costs, is subject to a wide
(Page 15)
- discretion. The Judge stated that the appellant had argued that the hearing of evidence relating to the issues on which the appellant had not succeeded had not taken up an inordinate amount of the Court's time. Her Honour noted that in decisions concerning costs in cases similar to the present one, a practical approach must be adopted so that the realities of the matter are addressed.
53 Her Honour referred to the reasons of Anderson J in Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85. In that case Anderson J observed that the Court should not get involved in an excessively detailed analysis of the various issues in an attempt to make intricate dollar perfect orders.
54 Her Honour also referred to the observations in Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 at 574 where, amongst other things, the Court referred to substantial justice being done.
55 The appellant did not succeed at the trial with respect to a number of the issues raised, including the fact that the respondent was not found to be negligent in failing to undertake certain procedures, or in other respects. In coming to the decision as to costs the learned Judge set out in detail the various matters on which the appellant had not succeeded at the trial and concluded that the appellant had only succeeded with respect to a small number of the allegations raised by him in the case.
56 Her Honour accepted the respondent's contention that the appellant had been successful on a comparatively narrow point. Her Honour also noted that the evidence given by the accountant called by the appellant had not advanced the case a great deal and that at the conclusion of the trial the appellant's counsel had conceded that the accountant's evidence as to future economic loss had not been of great assistance to the Court.
57 The learned Judge concluded:
"Whilst I do not consider that it is possible to say with certainty that the length of the trial was significantly extended by the amount of time taken up examining issues upon which the plaintiff failed to succeed, I am of the view in all the circumstances that the fact that the plaintiff succeeded on such a narrow range of issues should be reflected in the costs order made."
(Page 16)
58 Her Honour said:
"I have noted earlier in these reasons that it is not possible to be mathematically precise in moulding an order for costs in an application such as this but in all the circumstances, and taking into account the respective submissions of counsel and in an endeavour to be as fair as possible, I consider that a proper exercise of the Court's discretion in relation to costs is reflected in an order that the plaintiff recover only 70 per cent of his trial costs."
59 At the hearing of this appeal it was submitted for the appellant that all of the evidence which had been led at the trial was relevant and that there was no way in which the trial could have been made any shorter. However, it was accepted that the order for costs was discretionary and that it was difficult to overrule it.
60 Counsel for the respondent submitted that the learned Judge had taken into account all of the relevant matters and had properly exercised her discretion.
61 In my opinion it has not been demonstrated that there was any error of principle or in the exercise of the learned Judge's discretion on the question of costs. I would therefore not uphold the appeal against the learned Judge's order concerning the costs of the action.
62 The end result is that I would allow the appeal and increase the damages awarded to the appellant by the sum of $32,000. The cross-appeal should be dismissed.
63 STEYTLER J: I have had the advantage of reading the reasons for decision of Wallwork J. I agree with those reasons and have nothing to add.
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