JUDGE:	J FORREST J
WHERE HELD:	Horsham
DATES OF HEARING:	5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 30 September 2011 3, 4, 5, 6 and 7 October 2011 (Horsham) 12 October 2011 (Melbourne)
DATE OF RULING:	5 December 2011 (Horsham)
CASE MAY BE CITED AS:	Thomas v Powercor Australia Limited (Damages ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 586

DAMAGES – Tort – Damage to property – Repairs undertaken by plaintiff and volunteers – Whether plaintiff entitled to damages for own labour – Whether plaintiff entitled to damages for labour of volunteers – Held immaterial whether plaintiff carried out work himself or with volunteer labour

DAMAGES – Measure of damages – Damages to be measured by reference to reasonable commercial costs of repair

DAMAGES – Assessment of damages – Principles of ‘betterment’ in damages – evidential burden of proof lies on defendant – Plaintiff entitled to complete cost of repairs made necessary by tortious act – Plaintiff needs to give credit where extra improvements added

DAMAGES – Administration and inconvenience – Claims for non-economic loss – Part VBA of Wrongs Act 1958 (Vic) – Distinction between physical inconvenience and mental distress – Distinction between mere inconvenience and annoyance and physical inconvenience – Damages may be recovered for substantial inconvenience caused by tortious act - Insufficient evidence to establish claim for physical inconvenience.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Mr L Armstrong and Mr A Fraatz	Maddens
For the Defendant	Mr D Curtain QC with Mr D McWilliams and Mr D Wallis	Wotton & Kearney

Introduction

On the 24^th day of the trial (7 October 2011), the question of Powercor’s liability to Mr Thomas and the group members was resolved by agreement between the parties,[1] subject to the approval of the compromise by the Court.[2] Approval of the settlement of the liability issue has now been determined by Beach J.
[1]T 2407.
[2]Section 33V of the Supreme Court Act 1986 (Vic).

After the parties announced resolution of the liability issue, eleven questions relevant to damages were formulated by the parties for my determination. It was clear from this list that a number of the damages issues ventilated at the trial had been resolved, and several of the components of Mr Thomas’ claim for damages agreed.[3]
[3]For instance, the loss of amenity of the trees surrounding the house; Mr Thomas’s consequential loss of profits.

The first six questions raise a point of legal principle, namely:

(a)can Mr Thomas claim for the commercial cost of the reinstatement and repairs to the farm infrastructure when such work was carried out by himself with some assistance from volunteers?; and
(b)if so, how is that labour to be valued?

The next three questions, although relating to fairly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomas v Powercor Australia Ltd

Details

AGLC: Thomas v Powercor Australia Ltd [2011] VSC 586
Case: [2011] VSC 586
Decision Date: 5 December 2011 (Horsham)

CaseChat Overview and Summary

In this case, Thomas sought to recover damages for the destruction of his farm infrastructure by a fire that started when a power line came into contact with the ground. The parties settled the issue of liability, but the court had to determine the quantum of damages to be awarded. The court was required to decide whether Thomas was entitled to damages for the commercial cost of repairs to his farm infrastructure, when such work was carried out by himself with some assistance from volunteers. The court was also required to decide whether Thomas was entitled to damages for the administration and inconvenience caused by the fire.

The court held that Thomas was entitled to recover the reasonable commercial cost of repairs to his farm infrastructure, even if he carried out the work himself or with the help of volunteers. The court rejected Powercor's argument that Thomas could not recover damages for his own labour or the labour of volunteers, unless he could establish that the carrying out of such work caused him some discrete financial loss. The court held that the basic principle of damages is to put the plaintiff in the same position as if the damage had not occurred, and that the measure of damages for damage to goods is the cost of repairing the damaged article. The court found that the authorities supported the proposition that when an injured party has benefited from the kindness of others, such benefit should be ignored in the assessment of damages.

The court also held that Thomas was not entitled to compensation for losses described as "administration and inconvenience". The court found that Thomas' claim for inconvenience was unsubstantiated and that there was insufficient evidence to make any award for damages in favour of Thomas on the basis of physical inconvenience. The court held that even if a claim could be made for inconvenience alone where no mental harm was alleged as a consequence of that inconvenience, the inconvenience must be of some significance. The court found that Thomas' evidence as to the various aspects of physical inconvenience was limited and that there was insufficient evidence to support an award for physical inconvenience.

The court held that Thomas was entitled to damages in the sum of $43,140 for the reasonable commercial cost of repairs to his farm infrastructure. This sum included $2,830 per kilometre for the labour component of fencing, $11,982 for the damage to his stock yards, $15,000 for the replacement of his farm shed and $5,296 for the replacement of the contents of his farm shed. The court held that the claim for administration and inconvenience was unsubstantiated and made no award under this head.

Orders